# McDade-Murtha Amendment: Ethical Standards for Justice Department Attorneys

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URL: https://www.frixlaw.com/law-library/documents/crs%3ARL30060

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** December 18, 2001
- **Citation:** RL30060

## Text

Order Code RL30060

CRS Report for Congress
Received through the CRS Web

McDade-Murtha Amendment:
Ethical Standards for
Justice Department Attorneys

Updated December 18, 2001

-name redactedSenior Specialist
American Law Division

Congressional Research Service ˜ The Library of Congress

McDade-Murtha Amendment: Ethical Standards for
Justice Department Attorneys
Summary
The McDade-Murtha Amendment, 28 U.S.C. 530B, requires federal prosecutors
to follow state and federal rules of professional responsibility in effect in the states
where they conduct their activities. It also continues in place the sixty year old
directive that federal prosecutors follow the ethics rules promulgated by the states in
which they are licensed to practice. Proponents claim the change will confirm that
federal prosecutors must follow the same ethical rules as other lawyers and will
enhance the prospect of some protection against wayward federal prosecutors.
Opponents charge that it will implicitly undermine the Attorney General's authority
to preempt state laws that conflict with federal law enforcement interests and that in
doing so it will jeopardize the use of undercover techniques against terrorists, drug
kingpins and child predators because of possible interpretations of the so-called no
contact rule.
Under the no contact rule, accepted in virtually every American jurisdiction, a
lawyer in representing a client may "not communicate about the subject of the
representation with a person the lawyer knows to be represented by another lawyer
in the matter, unless the lawyer has the consent of the other lawyer or is authorized
by law to do so." The rule was designed to prevent lawyers from taking unfair
advantage of their untutored opponents.
The Justice Department is troubled by judicial interpretations of the rule that
indicate that it may apply: (1) in criminal cases prior to arrest or indictment; (2) to
federal prosecutors whose only contact is through informants, cooperative witnesses,
undercover agents, or federal investigators; (3) even though the represented client
initiated the contact; or (4) to contacts with the employees or agents of an
organizational target of a federal administrative and civil investigation. The courts
have thus far repudiated the efforts of the Department to craft an exception for federal
prosecutors administratively.
Similar concerns stimulated by rules covering the disclosure of exculpatory
evidence to the grand jury and the use of grand jury subpoenas against attorneys seem
to have been eased by internal guidelines and more favorable jurisprudence.
At its heart, the debate involves defining the ethical bounds within which
Department of Justice attorneys must operate and deciding to whom that task should
be assigned.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Summary of the Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Legislative Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Apparent Points of Disagreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Federal Prosecutorial Abuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Protective and Corrective Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Department of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Civil Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
State Bar Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Objections to the Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
No Contact Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Hammad . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Lopez & Ferrara: Client Initiated Contacts . . . . . . . . . . . . . . . . . . . . . . . . 16
O'Keefe: No Contact & Corporate Civil Enforcement . . . . . . . . . . . . . . . 18
Justice Department Regulations After the Amendment . . . . . . . . . . . . . . . 18
Ethics and the Grand Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Attorney Subpoenas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Exculpatory Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Prosecutors and Undercover Tactics . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Who Should Regulate the Ethics of Federal Prosecutors . . . . . . . . . . . . . 25
Appendices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
State Standards of Professional Conduct . . . . . . . . . . . . . . . . . . . . . . . . . 29
The No Contact Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Grand Jury Exculpatory Evidence Rule . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Grand Jury Subpoena Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
United States District Court Rules:
Standards of Attorney Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
United States Attorneys' Manual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
§9-11.233 Presentation of Exculpatory Evidence . . . . . . . . . . . . . . . . . . . 52
§9-13.410 Guidelines for Issuing Grand Jury or Trial Subpoena to Attorneys for
Information Relating to the Representation of Clients . . . . . . . . . . 52
[Department of Justice] Criminal Resource Manual 263 . . . . . . . . . . . . . . 53
28 C.F.R. Pt. 77 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

McDade-Murtha Amendment: Ethical
Standards for Justice Department Attorneys
Introduction
The McDade-Murtha Amendment, 28 U.S.C. 530B, requires federal prosecutors
to follow state and local federal court rules of professional responsibility in effect in
the states where they conduct their activities. Proponents claim the change confirms
that federal prosecutors must follow the same ethical rules as other lawyers and
enhances the prospect of some protection against wayward federal prosecutors.
Opponents charge that it implicitly undermines the Attorney General’s authority to
preempt state laws which conflict with federal law enforcement interests and that in
doing so it jeopardizes the use of undercover techniques against terrorists, drug
kingpins and child predators.

Summary of the Amendment
The Amendment1 declares that “[a]n attorney for the Government shall be
subject to State laws and rules, and local Federal court rules, governing attorneys in
each State where such attorney engages in that attorney's duties, to the same extent
and in the same manner as other attorneys in that State,” 28 U.S.C. 530B(a).
The phrase “attorneys for the government” is defined to include only Justice
Department attorneys and those exercising federal litigation authority, including
federal independent counsel.2 The Attorney General is empowered to promulgate the

1

The proposition was originally proposed by Congressmen McDade and Murtha as part of
the Citizens Protection Act, H.R. 3396 (106th Cong.).
2

28 U.S.C. 530B(c)(“(c) As used in this section, the term `attorney for the Government'
includes any attorney described in section 77.2(a) of part 77 of title 28 of the Code of Federal
Regulations and also includes any independent counsel, or employee of such a counsel,
appointed under chapter 40").
28 C.F.R. §77.2 provides, “As used in this part, the following terms shall have the
following meanings, unless the context indicates otherwise: (a) the phrase attorney for the
government means the Attorney General, the Deputy Attorney General, the Solicitor General,
the Assistant Attorneys General for, and any attorney employed in, the Antitrust Division,
Civil Division, Civil Rights Division, Criminal Division, Environment and Natural Resources
Division, and Tax Division; the Chief Counsel of the DEA and any attorney employed in that
office; the General Counsel of the FBI and any attorney employed in that office or in the
(Office of General Counsel) of the FBI; any attorney employed in, or head of, any other legal
office in a Department of Justice agency; any United States Attorney; any Assistant United
States Attorney; any Special Assistant to the Attorney General or Special Attorney duly

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regulations necessary to implement the statute's instructions, 28 U.S.C. 530B(b).
The appropriations law which enacted the Amendment elsewhere reminded the
Department of Justice of the command first issued in 1938 to the effect that its
attorneys must comply with the ethical standards of the state bars to which they are
admitted.3

Legislative Background
Congress included the Amendment as section 801 of the Omnibus Consolidated
and Emergency Supplemental Appropriations Act, 112 Stat. 2681-118 (1998).
Section 801 was a remnant of the Citizens’ Protection Act whose roots extend back
at least to the 101st Congress when the House Government Operations Committee

appointed pursuant to 28 U.S.C. 515; any Special Assistant United States Attorney duly
appointed pursuant to 28 U.S.C. 543 who is authorized to conduct criminal or civil law
enforcement investigations or proceedings on behalf of the United States; and any other
attorney employed by the Department of Justice who is authorized to conduct criminal or civil
law enforcement proceedings on behalf of the United States. The phrase attorney for the
government also includes any independent counsel, or employee of such counsel, appointed
under chapter 40 of title 28, United States Code. The phrase attorney for the government
does not include attorneys employed as investigators or other law enforcement agents by the
Department of Justice who is not authorized to represent the United States in criminal or civil
law enforcement litigation or to supervise such proceedings. . . .
“(c) The phrase civil law enforcement investigation means any investigation of possible
civil violations of, or claims under, federal law that may form the basis for a civil law
enforcement proceeding.
“(d) The phrase civil law enforcement proceeding means a civil action or proceeding
before any court or other tribunal brought by the Department of Justice under the authority
of the United States to enforce federal laws or regulations, and includes proceedings related
to the enforcement of an administrative subpoena or summons or civil investigative demand.”
3

Sec. 102, P.L.No. 105-277, 112 Stat.2681-66 (1998): “Authorities contained in the
Department of Justice Appropriation Authorization Act, Fiscal Year 1980 (Public Law 96132; 93 Stat. 1040 (1979)), as amended, shall remain in effect until the termination date of
this Act or until the effective date of a Department of Justice Appropriation Authorization
Act, whichever is earlier.” The 1979 limitation has been carried forward in annual Justice
Department appropriations ever since, e.g., P.L.No. 106-113, 113 Stat. 1501A-19 (1999);
P.L.No. 106-553, 114 Stat. 2762A-67 (2000).
Section 3(a) of the 1979 legislation declares that, "None of the sums authorized to be
appropriated by this Act may be used to pay the compensation of any person employed after
the date of the enactment of this Act as an attorney (except foreign counsel employed in
special cases) unless such person shall be duly licensed and authorized to practice as an
attorney under the laws of a State, territory, or the District of Columbia," 93 Stat. 1044
(1979).
Virtually identical language had appeared in every Justice Department appropriation act
prior to 1979 all the way back to 1938, 52 Stat. 269 (1938). Since an attorney can only be
“duly licensed and authorized to practice” if he or she agrees to adhere to the ethical standards
required of members of the bar, the courts have understood this requirement to mean that
Justice Department attorneys must follow the ethical standards prescribed by the states in
which they were admitted to practice, United States v. Ferrara, 847 F.Supp. 964, 969
(D.D.C. 1993), aff'd on other grounds, 54 F.3d 825 (D.C.Cir. 1995).

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conducted hearings4 and recommended among other things a thorough examination
of the ethics rules applicable to Department attorney while expressing concern over
“the problems inherent in any system of self-policing and regulation,” H.Rept. 101986, at 35 (1990).
The issue lay dormant until the 104th Congress, when Representative McDade
introduced a bill, using essentially the same language found in section 801.5 The
House Judiciary Courts and Intellectual Property Subcommittee held hearings,6 but
Congress took no other action.7
Congressman McDade reintroduced the measure early in the 105th Congress
(H.R. 232). He and Congressman Murtha subsequently offered a second bill, the
Citizens Protection Act (H.R. 3396), which added sections on punishable conduct and
on a Misconduct Review Board to ensure enforcement of basic ethical standards.
There were no committee hearings held, nor reports issued, on either bill, but the
House Appropriations Committee incorporated the Citizens Protection Act into its
omnibus appropriations measure (H.R. 4276). The Committee's report tersely
explained that the portion of the bill which was eventually enacted was designed to
4

Exercise of Federal Prosecutorial Authority in a Changing Legal Environment: Hearing
Before the Government Information, Justice, and Agriculture Subcomm. of the House
Comm. on Government Operations, 101st Cong., 2d Sess. (1990).
5

H.R. 3386 (104th Cong.): Sec. 1."This Act may be cited as the `Ethical Standards for
Federal Prosecutors Act of 1996.' Sec. 2. ETHICAL STANDARDS FOR FEDERAL
PROSECUTORS. (a) IN GENERAL- Chapter 31 of title 18, United States Code, is amended
by adding at the end the following: `Sec. 530B. Ethical standards for attorneys for the
Government. `(a) An attorney for the Government shall be subject to State laws and rules, and
local Federal court rules, governing attorneys in each State where such attorney engages in
that attorney's duties, to the same extent and in the same manner as other attorneys in that
State.
`(b) The Attorney General shall make and amend rules of the Department of Justice to assure
compliance with this section.
`(c) As used in this section, the term `attorney for the Government' includes any attorney
described in section 77.2(a) of part 77 of title 28 of the Code of Federal Regulations.'"
6

Ethical Standards for Federal Prosecutors Act of 1996: Hearing Before the Subcomm. on
Courts and Intellectual Property of the House Comm. on the Judiciary, 104th Cong., 2d
Sess. (1996).
7

Early in the 104th Congress, Senator Dole introduced a comprehensive crime control bill
that included a provision authorizing the Attorney General to shield Justice Department
attorneys from the otherwise applicable ethical standards under state bar rules and local
federal court rules, S.3, §502 ("Notwithstanding the ethical rules or the rules of the court of
any State, Federal rules of conduct adopted by the Attorney General shall govern the conduct
of prosecutions in the courts of the United States"). While the Senate Judiciary Committee
held hearings on various aspects of S.3, none appear to have focused on the ethical standards
issue, Prison Reform: Enhancing the Effectiveness of Incarceration: Hearing Before the
Senate Comm. on the Judiciary, 104th Cong., 1st Sess. (1995); Federal Law Enforcement
Priorities: Hearing Before the Senate Comm. on the Judiciary, 104th Cong., 1st Sess.
(1995); The Jury and the Search for Truth: The Case Against Excluding Relevant Evidence
at Trial: Hearing Before the Senate Comm. on the Judiciary, 104th Cong., 1st Sess. (1995);
S.3 was never reported out of committee.

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confirm that the Attorney General did not have the authority to exempt Department
attorneys from the ethical standards to which other attorneys were held.8 The Senate
version of the measure had no similar provision.
The conference committee for the appropriations package stripped out the
punishable conduct and review board sections leaving section 801 to be passed with
the rest of the compromise bill. Senators Hatch and Leahy, the Chairman and ranking
minority member the Senate Judiciary Committee, greeted section 801's passage with
dismay.9
During the 106th Congress, Senate Hatch introduced legislation repealing the
Amendment and codifying the requirement that federal prosecutors adhere the ethical
standards of the bar to which they were admitted, S.250.10 The Subcommittee on
Criminal Justice Oversight of the House Committee on the Judiciary held hearings,
but no further action was taken.11

Apparent Points of Disagreement
While no single source in the legislative background supplies a full explanation
or even a full identification of the issues reflected in the McDade-Murtha Amendment,

8

“The bill includes language to make government attorneys subject to laws and rules of the
State and the rules of the local Federal court in which they are practicing and to establish
conduct standards and procedures for Department of Justice employees. Subtitle A, section
811, addresses the concerns of the Committee about the Department of Justice's issuance of
a regulation that exempts its attorneys from the same State laws and rules of ethics which all
other attorneys must follow (59 Fed.Reg. 39910, August 4, 1994),” H.R.Rep.No. 105-636
at 154 (1998). As discussed below, the Department of Justice had reacted to judicial
construction of the so-called "no contact" rule of professional ethics first with a memorandum
from Attorney General Thornburgh and then with regulations from Attorney General Reno
that purported to authorize federal prosecutors to disregard the rule except to the extent noted
in the memorandum/regulations.
9

144 Cong.Rec. S12798-799 (daily ed. Oct. 21, 1998)(remarks of Sen. Hatch)("This illadvised provision passed the House as an amendment to the House Commerce, State, Justice
Appropriations bill but it never passed the Senate. . . . I would note, however, that in response
to our concerns, the Leadership has inserted a provision which will delay the implementation
of this provision for six months. At the very least, this will give the Department of Justice and
others the opportunity to educate the Congress as to the serious effect this blanket provision
will have on law enforcement. It is my hope and expectation that, during the next sixth
months, we will be able to develop a more workable and effective solution"); 114 Cong.Rec.
S12858-858 (daily ed. Oct. 21, 1998)(remarks of Sen. Leahy)("mischief"); see also, 144
Cong.Rec. S12996-997 (daily ed. Nov. 12, 1998)(remarks of Sen. Abraham).
10

Senator Hatch also introduced S. 755 which would have delayed the April, 1999 effective
date of the Amendment for another six months.
11

The Effect of State Ethics Rules on Federal Law Enforcement: Hearing Before the
Subcomm. Of the Sen. Comm. On the Judiciary, 106th Cong., 1st Sess. (1999). Legislative
activity in this Congress is the subject of separate report entitled McDade-Murtha
Amendment: Legislation in the 107th Congress Concerning Ethical Standards for
Department of Justice Litigators, CRS REP. NO. RL (Dec. 18, 2001).

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the legislative record taken as a whole reveals the positions of proponents and
opponents. Proponents maintain:

!

there are instances of federal prosecutorial abuse

!

traditional checks on federal prosecutorial abuse have eroded; the
courts have been increasingly reluctant to use their supervisory
powers to prevent or correct prosecutorial abuse; the check once
afforded by scarce resources no longer applies; the incentives for
abuse have become more attractive

!

the judicial remedies available for prosecutorial abuse (retrial) are
costly and do little to discourage or punish overzealous prosecutors

!

the Department of Justice's system of self discipline has not been
effective

!

the disciplinary mechanisms available for enforcement of standards of
conduct for the legal profession offer an impartial means of deterring
and punishing prosecutorial abuse

!

the disciplinary mechanisms are more effective if they can be invoked
where the abuse occurs rather than where the prosecutor is admitted
to practice

!

the Attorney General lacks authority claimed by the Justice
Department to waive the ethical standards to which federal
prosecutors must otherwise adhere

!

the enforcement of standards of professional conduct poses no threat
to effective federal law enforcement; should such a threat develop the
appropriate response is federal legislation

Critics contend:

!

there are few instances of federal prosecutorial abuse

!

charges of prosecutorial abuse are the work defense lawyers
attempting to encumber effective law enforcement

!

the Justice Department has an effective internal means of dealing with
any wayward federal prosecutors

!

federal prosecutors have and will continue to observe the highest
standards of professional conduct, but under the guise of ethical
standards states have introduced policy determinations (in conflict
with existing federal policies) into the rules, i.e.:
- "no contact" rules that hamstring undercover and other
legitimate investigative techniques

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- requiring the disclosure of exculpatory evidence to the grand
jury
- requiring prior judicial approval before serving a subpoena on
an attorney to appear before the grand jury and testify about clientrelated matters

!

the Attorney General has preemptive authority to determine the
manner in which federal laws are enforced

!

state authorities have no power to preempt conflicting law
enforcement policies and standards of conduct founded on federal law

!

federal law enforcement policies should be determined by federal
authorities not state bar authorities (who are often captives of the
defense bar)

!

state authorities have no power to pre-empt conflicting federal law
enforcement policies and standards of conduct founded on federal law

!

requiring federal law enforcement authorities to comply with the
multitude of state bar requirements would impair federal multistate
investigations

Federal Prosecutorial Abuse
During floor debate on the Amendment to strike the Citizens Protection Act
from the appropriations package, several Members of the House spoke from personal
experience of both specific instances12 and of general patterns of prosecutorial

12

E.g., 144 Cong. Rec. H7229 (daily ed. Aug. 5, 1998) (remarks of Rep. Murtha)
("insidious" and "unethical tactics" used against Rep. McDade); id. at H7230 (remarks of
Rep. Ford) ("5 years of investigating, several years, one trial, a second trial, abuse by the
Justice Department, simply trampling the rights of an individual, another Member of
Congress, I cannot tell you the pain that it exacted on my family and my father personally");
id. at H7233 (remarks of Rep. King) ("I would like to refer to a predecessor that I had here
in the Congress. . . . He was a man who was brought in by the United States Attorney and
told he had to deliver a political leader. When he refused to do that, he was called before the
grand jury. His family was harassed. He was indicted. His friends were indicted. Everything
was leaked to the newspapers. This man's career was destroyed. He was defeated here in the
United States Congress. Finally his case went to trial. The jury was out 30 minutes and he
was acquitted. It came out . . . that all throughout the trial, from day one, the prosecutors had
evidence that would have completely exonerated this defendant . . . the judge said it was
disgrace"); id. at H7245 (remarks of Rep. Duncan) ("We have had far too many cases where
overzealous prosecutors have presented high profile defendants just so that prosecutor could
make a name for himself. I remember the totally unjustified case against President Reagan's
Secretary of Labor, Ray Donovan, in which after he was acquitted, made the famous
statement, "Where do I go to get my reputation back?").

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misconduct.13 Their disclosures often ended with exasperated observations about the
ineffectiveness of existing preventive and remedial measures.14 They were met by
proponents of the amendment who cautioned against overreaction and the dangers of
subjecting federal law enforcement interests to state regulatory authority.15

13

E.g., 144 Cong. Rec. H7232 (daily ed. Aug. 5, 1998)(remarks of Rep. Kanjorski)("the
prosecutors in the United States today, whether they be special counsels or regular
prosecutors, have shown us that they are going to push it to the end of the envelop and
beyond. They are going to write their own definition of what standards are"); id. at H7233
(remarks of Rep. King)("Prosecutors are out of control. They are ruining the civil liberties
of people in this country"); id. at H7234 (remarks of Rep. Fowler)("Time and time again it
has come to my attention that Department of Justice lawyers have conducted themselves in
a questionable manner while representing the Federal Government without any penalty or
oversight"); id. at H7236 (remarks of Rep. Waters)("I know thousands of Mr. McDades who
do not have any attorneys, whose grandmothers and mothers come crying to my office for me
to help them and I cannot do anything because in my powerful government, prosecutors have
run amuck").
14

E.g., 144 Cong. Rec. H7229 (daily ed. Aug. 5, 1998)(remarks of Rep. Murtha)("in
addition to trying to intimidate the House of Representatives and ignore the rules of the House,
which the public saw immediately, he was reelected three times during this period, when they
leaked everything that could possibly be leaked, using those unethical tactics we are talking
about during this period of time. Then, after this is all over, they tried to promote the
prosecutor to judge"); id. at H7233 (remarks of Rep. King)(". . . the judge said it was
disgrace. He referred it to the Justice Department to have it investigated. What was done?
Nothing. That is what always happens nothing"); id. at H7239 (remarks of Rep. Hyde)("I go
back to the Iran-Contra days when Elliot Abrams was destroyed by an independent counsel,
I thought very unjustly, when Casper Weinberger was indicted three days before an election,
and there is just no accountability . . ."); id. at H7242 (remarks of Rep. McDade)("Under the
current system that we heard described by my colleagues . . . there is a remedy for a citizen,
once convicted. They can appeal to another court, a higher court. They can make a
recommendation or an argument at OPM, the Office of Professional Responsibility in the
Department of Justice, after they have been convicted; lives ruined, bankrupt. If they can
prove something, they might get a reversal of their case. Let me be specific. In the case of
United States v. Taylor about a year ago, the Department of Justice twisted the testimony of
an individual and convicted him on perjurious testimony. If we read the case, we will read
that the judge that tried it found the employees of the Department guilty of obstruction of
justice. What a charge, corrupting the system that they are supposed to be defending. What
did the Office of Professional Responsibility do after the judge made that finding? Mr.
Chairman, they gave the people who corrupted that system a 5-day suspension form their
jobs").
15

E.g., 144 Cong. Rec. H7238 (daily ed. Aug. 5, 1998)(remarks of Rep. Bryant)("by and
large these are good prosecutors trying to do the right thing in many cases and in very
dangerous, very tough situations. What I want to guard against here today is an overreaction
to these anecdotal cases"); id. at H7244 (remarks of Rep. Barr)("Let us not throw the baby
out with the bath water. If there have been abuses, then let us address those particular abuses,
but not change and take away the ability of Federal prosecutors to conduct multi-State
investigations"); id. at H7245 (remarks of Rep. Hutchinson)("We have to be careful not to
adopt bad policy because we are sorry for what has happened in the past"); id. at H7246
(remarks of Rep. Harman)("If there is a problem with prosecutorial misconduct, it should
certainly be addressed. But is it better to address it by requiring federal prosecutors adhere
to a single, high standard of conduct, or to 50 different sets of ethics rules? Indeed, some of

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Protective and Corrective Alternatives
The Courts
Although opponents and proponents of the Amendment disagree on its
effectiveness, there are, at least in theory, more than a few devices to prevent and
correct prosecutorial abuse. The courts are perhaps the most obvious source. They
have authority to control criminal trials, to exclude improperly secured evidence, to
overturn convictions, to order new trials, and to punish contempts committed before
them by fine, suspension from practice before them, removal from a particular case,
and/or admonishments and reprimands.
The primary purpose of a federal criminal trial, however, is to determine whether
the accused is guilty beyond a reasonable doubt. Buttressed by tradition and the
Constitution, the courts have long exercised control over the proceedings to ensure
that the determination is made fairly. If a prosecutor's misconduct so infects a trial
as to render any verdict uncertain and unfair or otherwise breaches constitutional
barriers, the courts will respond.16
In the absence of a clear constitutional violation, however, the federal courts,
following the lead of the Supreme Court, have shown a growing reluctance to use
their supervisory powers to exclude evidence, dismiss indictments, or reverse
convictions in order to prevent prosecutorial overreaching.17 Yet courts and
commentators alike have noted a general judicial failure to embrace the alternatives
to exclusion, dismissal, and reversal.18

the state rules may be contrary to the obligations and responsibilities we may require of
federal prosecutors").
16

United States v. Hastings, 461 U.S. 499, 505 (1983)("guided by considerations of justice
and in the exercise or supervisory powers, federal courts may, within limits, formulate
procedural rules not specifically required by the Constitution or Congress. The purpose
underlying use of the supervisory powers are threefold: to implement a remedy for violation
of recognized rights; to preserve judicial integrity by ensuring that a conviction rests on
appropriate considerations validly before the jury; and finally, as a remedy designed to deter
illegal conduct,") (internal quotations and citations omitted); see also, Twenty-Seventh Annual
Review of Criminal Procedure, "Prosecutorial Misconduct," 86 GEORGETOWN LAW JOURNAL
1677 (1998); Gershman, TRIAL ERROR AND MISCONDUCT (1997).
17

Little, Who Should Regulate the Ethics of Federal Prosecutors?, 65 FORDHAM LAW
REVIEW 355, 363 (1996)("In 1983, in United States v. Hastings, [461 U.S. 499], the
Supreme Court addressed a case in which a Federal Court of Appeals had reversed `gruesome'
sexual abuse convictions `to discipline the prosecutor—and warn other prosecutors' about
their perceived prosecutorial misconduct. The Supreme Court ordered that the convictions be
reinstated, and stated a more restricted view of federal courts' `supervisory power' than was
prevalent in many lower courts. The court noted that remedy `more narrowly tailored' than
reversal on the merits was available: ethical chastisement and discipline of the offending
federal prosecutors").
18

"We thus find ourselves in a situation with which we are all too familiar: a prosecutor has
engaged in misconduct at trial, but no reversible error has been shown," United States v.
Wilson, 149 F.3d 1726, 1303 (11th Cir.)(Aug. 13, 1998). The Wilson court listed a series

CRS-9

Department of Justice
The Department of Justice enjoys even more sweeping authority to discipline its
prosecutors, ranging from administrative sanctions to the presentation to a grand jury
for prosecution. In addition to supervisory authority over federal prosecutors by the
various United States Attorneys' Offices, the Department of Justice maintains an
Office of Professional Responsibility (OPR) authorized to receive and review
complaints of prosecutorial misconduct, 28 C.F.R. §0.39a. Neither appear to have
won universal acclaim as an effective hedge against prosecutorial overreaching.19

of alternative sanctions ranging from curative jury instructions to contempt citations, fines,
reprimands, suspension from the bar of the court, removal of the attorney from the case, and
referral to bar disciplinary authorities. It then reiterated an earlier, and apparently unheeded
plea, "`We encourage the district courts in this circuit to remain vigilant . . . and consider
more [fully these sanctions] in cases of persistent or flagrant misconduct,'" 149 F.3d at 1304,
quoting, United States v. Butera, 677 F.2d 1376, 1383 (11th Cir. 1982); Green, Policing
Federal Prosecutors: Do Too Many Regulators Produce Too Little Enforcement? 8 ST.
THOMAS LAW REVIEW 69, 82 (1995)("In most cases when the propriety of the prosecutor's
conduct is called into question, but no remedy is available to the defendant, district judges
decline to act as disciplinarians, but instead leave it to others to address the question").
19

A Call for a Uniform Standard of Professional Responsibility in the Federal Court
System: Is Regulation of Recalcitrant Attorneys at the District Court Level Effective? 66
UNIVERSITY OF CINCINNATI LAW REVIEW 901, 919 (1998)("The power to the DOJ to regulate
misconduct over all of its prosecutors in the ninety-four districts has resulted in marked
criticism surrounding the DOJ's ability to effectively regulate its own employees. First, the
OPR has been criticized for rarely asserting its jurisdiction over a DOJ attorney; therefore,
few investigations of DOJ attorneys actually occur. Second, even when the OPR does assert
its jurisdiction, the OPR has been criticized for potential bias because it is regulating one of
its own employees. Third, in the unusual instance where the OPR finds a violation by a DOJ
attorney, the attorney may avoid scrutiny and discipline by simply leaving the employment of
the department. Last, the DOJ rarely issues a public explanation of its internal finding, which
precludes public exposure to OPR findings"); Green, Policing Federal Prosecutors: Do Too
Many Regulators Produce Too Little Enforcement?, 8 ST. THOMAS LAW REVIEW 69, 84-7
(1995); Seeking the Elusive Remedy for Prosecutorial Misconduct: Suppression, Dismissal,
or Discipline? 7 GEORGETOWN JOURNAL OF LEGAL ETHICS 1083, 1109-111 (1994).
A number of courts have lamented the failure of various United States Attorneys' Offices
to supervise wayward Assistant United States Attorneys or to deal with their misconduct, e.g.,
United States v. Kojayan, 8 F.3d 1315, 1324-325 (9th Cir. 1993)("The overwhelming
majority of prosecutors are decent, ethical, honorable lawyers who understand the awesome
power they wield, and the responsibility that goes with it. . . . One of the most important
responsibilities of the United States Attorney and his senior deputies is ensuring that line
attorneys are aware of the special ethical responsibilities of prosecutors, and that they resist
the temptation to overreach. . . . What we find most troubling about this case is not the
AUSA's initial transgression, but that he seemed to be totally unaware he'd done anything at
all wrong, and that there was no one in the United States Attorney's office to set him straight.
Nor does the government's considered response, filed after we pointed out the problem, inspire
our confidence that this kind of thing won't happen again"); United States v. Ming He, 94
F.3d 782, 791 (2d Cir. 1996)("Both cases [Ming He and an earlier case Pinto in which the
Second Circuit warned against a particular form of prosecutorial misconduct] originated in
the same district, and though we characterized the prosecutor's conduct in Pinto as `unseemly,'
the hint to make some sort of change apparently was not acted upon. Instead, the

CRS-10

Civil Remedies
The victims of federal prosecutorial abuse have few civil remedies at their
disposal. As a general rule, the federal government enjoys sovereign immunity that
prevents it from being sued even for the misconduct of its officers and employees.20
Personally, federal prosecutors enjoy judicial immunity from civil liability for their
court-related activities as prosecutors and qualified immunity for their activities as
investigators.21
Congress may abrogate any of these immunities, but it has done so only to a very
limited extent. It has, for example, authorized the payment of attorneys' fees and
other litigation expenses to "prevailing parties" in a criminal case who are the victims
of prosecutorial misconduct that is "vexatious, frivolous, or in bad faith,"22 and to

government's conduct in this case, we are told, is not a rare occurrence but `standard
practice'"); United States v. Van Engel, 15 F.3d 623, 629 (7th Cir. 1993) ("Someone in the
Milwaukee U.S. Attorney's office should have known . . . [not to] launch a sting operation
[based on meager evidence] against the lawyer of an individual under criminal investigation
by the some office").
20

F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); see also, United States v. Horn, 29 F.3d
754, 767 (1st Cir. 1994)(vacating on sovereign immunity grounds a district court order that
the government pay attorneys' fees resulting from a particularly egregious instance of
prosecutorial misconduct).
21

Kalina v. Fletcher, 522 U.S. 118 (1997); Imbler v. Pachtman, 424 U.S. 409 (1976);
Buckley v. Fitzsimmons, 509 U.S. 259 (1993).
22

18 U.S.C. 3006A note, P.L. 105-119, § 617, 111 Stat. 2519 (1997)(“During fiscal year
1998 and in any fiscal year thereafter, the court, in any criminal case (other than a case in
which the defendant is represented by assigned counsel paid for by the public) pending on or
after the date of the enactment of this Act [Nov. 26, 1997], may award to a prevailing party,
other than the United States, a reasonable attorney's fee and other litigation expenses, where
the court finds that the position of the United States was vexatious, frivolous, or in bad faith,
unless the court finds that special circumstances make such an award unjust. Such awards
shall be granted pursuant to the procedures and limitations (but not the burden of proof)
provided for an award under section 2412 of title 28, United States Code. To determine
whether or not to award fees and costs under this section, the court, for good cause shown,
may receive evidence ex parte and in camera (which shall include the submission of classified
evidence or evidence that reveals or might reveal the identity of an informant or undercover
agent or matters occurring before a grand jury) and evidence or testimony so received shall
be kept under seal. Fees and other expenses awarded under this provision to a party shall be
paid by the agency over which the party prevails from any funds made available to the agency
by appropriation. No new appropriations shall be made as a result of this provision”).

CRS-11
unindicted subjects of an independent counsel investigation.23 These authorize relief;
they do not speak to either prevention or punishment.

State Bar Authorities
Either the courts or the Department of Justice may refer evidence of a federal
prosecutor's ethical violations to the authorities of the bar in the state in which he or
she is admitted to practice for disciplinary action. For some time, federal prosecutors
have been required to be licensed to practice law in at least one state, district or
territory of the United States and consequently to adhere to the ethical standards
established for the jurisdictions in which they are licensed. Each jurisdiction has its
own means of enforcing adherence to its ethical dictates. Attorneys remain subject
to those demands wherever they go, but disciplinary enforcement for out-of-state
misconduct is more cumbersome. Complaints are less like to be filed, more costly to
investigate, and less convenient to contest. This can be especially telling in the case
of federal prosecutors who need not be licensed in the jurisdiction in which they are
appointed nor in every jurisdiction in which they perform their duties.
The Amendment seeks to overcome this difficulty by requiring federal
prosecutors to follow the ethical standards of any jurisdiction in which they conduct
their duties. Critics challenge not the effectiveness of the proposal, but as discussed
below at greater length, whether federal law enforcement interests ought to preempt
state dictates, at least under some circumstances.

Objections to the Amendment
The basic objections to section 801 seem to address what it does not do and
what it portends rather than what it does. The 1996 hearings on virtually identical
language contain perhaps the clearest statement of the Department of Justice's
objections to passage of the Amendment— concern over state regulation of federal
law enforcement and repudiation of the Department's claim of authority to preempt
state pronouncements that conflict with federal law enforcement interests:

23

28 U.S.C. 593(f)("(1) Award of fees.—Upon the request of an individual who is the subject
of an investigation conducted by an independent counsel pursuant to this chapter, the division
of the court may, if no indictment is brought against such individual pursuant to that
investigation, award reimbursement for those reasonable attorneys' fees incurred by that
individual during that investigation which would not have been incurred but for the
requirements of this chapter. The division of the court shall notify the independent counsel
who conducted the investigation and Attorney General of any request for attorneys' fees under
this subsection. (2) Evaluation of fees.—The division of the court shall direct such
independent counsel and the Attorney General to file a written evaluation of any request for
attorneys' fees under this subsection, addressing-- (A) the sufficiency of the documentation;
(B) the need or justification for the underlying item; (C) whether the underlying item would
have been incurred but for the requirements of this chapter; and (D) the reasonableness of the
amount of money requested").

CRS-12
H.R. 3386 does, however, have the potential to seriously compromise the
public's interest in effective law enforcement. Among other things, the bill could
seriously hamstring the Department's ability to conduct undercover
investigations. . . .
The primary manner in which H.R. 3386 would affect Federal law
enforcement would be by implicitly cutting back on the Attorney General's
preemption power. Although the Department requires its attorneys to comply
with State ethics rules, the Attorney General currently has the power to preempt
those rules when they conflict with Federal law enforcement and interfere with
her ability to conduct necessary law enforcement operations. By silently
overriding the Attorney General's power in this area, H.R. 3386 could effect at
least two important and undesirable changes in current law.
First, it would leave Federal law enforcement vulnerable to hostile State
ethics rulings or decisions that interfere with the enforcement of Federal law.
Several States, for example, have tried to use "ethics rules" to alter the nature
and function of the Federal jury, for example, by dictating to Federal prosecutors
what evidence they must present to a grand jury or by requiring that prosecutors
obtain judicial approval before obtaining subpoenas for evidence from attorneys
....
A second and related consequences of H.R. 3386 would be to call into
question the Department's regulation on contacts with represented persons.
Historically, when investigations were carried out exclusively by the police and
Federal investigator, ethics rules governing attorneys' contacts with represented
persons did not interfere with the legitimate needs of law enforcement; lawyers
simply weren't involved. . . . [O]ver the past decades . . . prosecutors have
increasingly become more involved in the early stages of criminal investigations.
Generally overwhelmingly, the judicial response has been to recognize that
contacts rules do not apply to prosecutors engaged in pre-indictment law
enforcement investigations. Nevertheless, prosecutors have increasingly faced
contacts-based challenges to law enforcement techniques that were previously
unquestioned. Over the past decade these developments have resulted in two
highly significant problems for Federal prosecutors.
First, the expansive application of the contacts rule in some jurisdictions has
threatened legitimate and essential law enforcement activities. . . .
Second, Federal prosecutors are facing conflicting interpretations of the
contacts regulations by various State and Federal authorities. . . .
Ethical Standards for Federal Prosecutors Act of 1996: Hearing Before the
Subcomm. on Courts and Intellectual Property of the House Comm. on the
Judiciary, 104th Cong., 2d Sess. 12-3 (1996)(testimony of Seth P. Waxman,
Associate Deputy Attorney General)(emphasis added).

No Contact Rules
Rule 4.2 of the American Bar Association's Model Code of Professional Conduct
declares that, "In representing a client, a lawyer shall not communicate about the
subject of the representation with a person the lawyer knows to be represented by
another lawyer in the matter, unless the lawyer has the consent of the other lawyer or
is authorized by law to do so." Rule 4.2, or its predecessor under the ABA's Code

CRS-13
of Professional Responsibility,24 has been adopted by each of the States25 and
consequently by the vast majority of federal courts.26
Justice Department discomfort with the rule flows not from its explicit demands
but from its construction in the face of the shifting realities of contemporary law
enforcement practices. These may be best demonstrated by the facts of the cases the
Department finds troubling.

Hammad
Conflicts over the reach of the no contact rule came to a head with a case called
United States v. Hammad.27 The government began an investigation of Hammad, a

24

ABA Code of Professional Responsibility, DR 7-104(A)("During the course of his
representation of a client a lawyer shall not: (1) Communicate or cause another to
communicate on the subject of the representation with a party he knows to be represented by
a lawyer in that matter unless he has the prior consent of the lawyer representing such other
party or is authorized by law to do so. (2) Give advice to a person who is not represented by
a lawyer, other than the advice to secure counsel, if the interests of such person are or have
a reasonable possibility of being in conflict with the interests of his client"). Disciplinary
Rule 7-104(A) is itself a successor to a provision in the early ABA Canons of Ethics, ABA
Canon 9 ("A lawyer should not in any way communicate upon the subject of controversy with
a party represented by counsel; much less should he undertake to negotiate or compromise the
matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most
particularly to avoid everything that may tend to mislead a party not represented by counsel,
and he should not undertake to advise him as to the law").
25

State versions of Rule 4.2 are appended.

26

The local rules of professional conduct for the various federal district courts, which
generally adopt the ethical rules of the states in which they are located, are appended. For a
general discussion of the no contact controversy see, United States Department of Justice,
Attorney General Reno, Communications with Represented Persons: Supplementary
Information, 59 Fed.Reg. 39,928 (1994); Bowman, A Bludgeon by any Other Name: The
Misuse of "Ethical Rules" Against Prosecutors to Control the Law of the State, 9
GEORGETOWN JOURNAL OF LEGAL ETHICS 665 (1996); Cramton & Udell, State Ethics Rules
and Federal Prosecutors: The Controversies Over the Anti-Contact and Subpoena Rules,
53 UNIVERSITY OF PITTSBURGH LAW REVIEW 291 (1992); Federalizing the No contact Rule:
The Authority of the Attorney General, 33 AMERICAN CRIMINAL LAW REVIEW 189 (1995);
Dash, Justice Department Contacts With Represented Persons: An Alarming Assertion of
Power, 65 JUDICATURE 137 (1994); Flowers, A Code of Their Own: Updating the Ethics
Codes to Include the Non-Adversarial Roles of Federal Prosecutors, 37 BOSTON COLLEGE
LAW REVIEW 923 (1996); Green, A Prosecutor's Communication With Defendants: What
Are the Limits? 24 CRIMINAL LAW BULLETIN 283 (1988); Lidge, Government Civil
Investigators and the Ethical Ban on Communicating With Represented Parties, 67 INDIANA
LAW JOURNAL 549 (1992); Is DoJ Above the Rules? The Department's Bid to Exempt
Lawyers From Contact Rules Is Blasted by States' Chief Justices, 84 AMERICAN BAR
ASSOCIATION JOURNAL 26 (November 1997); The Continuing Conflict Over the Application
of Model Rule 4.2 to Federal Attorneys, 44 AMERICAN UNIVERSITY LAW REVIEW 855
(1995).
27

Hammad involves three opinions, a district court decision, United States v. Hammad, 678
F.Supp. 397 (E.D.N.Y. 1987), and two appellate court decisions, United States v. Hammad,

CRS-14
New York department store owner, based on the suspicion that he was claiming
Medicaid reimbursement for the sale of orthopedic shoes in instances when he had in
fact sold ordinary shoes. Hammad retained the services of a lawyer in connection
with the matter and the prosecution knew he had done so. The prosecutor armed
Goldstein, one of Hammad's shoe suppliers, with a fictitious grand jury subpoena
purporting to call Goldstein as a witness in the Hammad investigation. Goldstein then
engaged Hammad in incriminating conversations that were surreptitiously tape
recorded and videotaped by a Bureau of Alcohol, Tobacco and Firearms agent. After
Hammad was indicted for Medicaid fraud, mail fraud, and obstruction of justice, he
moved to suppress the tapes based on an asserted violation of the no contact rule
adopted by New York bar authorities.
The resulting district and appellate court opinions brought into focus three of the
four points at which interpretation of the no contact rule might be thought to imperil
existing or emerging law enforcement practices:
- application during an investigation but before the client has been arrested or
charged with the crime under investigation;
- application to not only prosecuting attorneys but also to police, undercover
agents, informants and others working with prosecutors; and
- the sanctions are appropriate when a violation occurs.
Left for another day was the question of the rule's application in the case of
clients who are also potential witnesses/informants.
The district court concluded that under the circumstances at hand the no contact
rule applied even before an arrest or indictment, that the rule applied because
Goldstein, who was not a lawyer, had acted as the prosecutor's "alter ego", and that
suppression of the evidence was an appropriate sanction for violation of the rule,
United States v. Hammad, 678 F.Supp. 397 (E.D.N.Y. 1987).
The court of appeals rejected suppression as an appropriate sanction, but agreed
that the rule might be violated by informants acting as alter egos of the prosecutor
prior to the client's arrest or indictment. In its first, more sweeping statement of
violative pre-indictment conduct, it declared that “[c]learlly, clandestine interrogation
by an Assistant United States Attorney [of a suspect known to have retained counsel
with respect to the matter] would contravene his ethical obligation. On the other
hand, the rule is not implicated when an informant comes forth to report
conversations of which the prosecutor lacked foreknowledge,” United States v.
Hammad, 846 F.2d 854, 860 (2d Cir. 1988). The revised opinion used a softer and
yet less instructive characterization, “the use of informants by government prosecutors
in a preindictment, non-custodial situation, absent the type of misconduct that
occurred in this case, will generally fall within the `authorized by law’ exception to
DR 7-104(A)(1) and therefore will not be subject to sanctions," United States v.
Hammad, 858 F.2d 834, 838 (2d Cir. 1988).

846 F.2d 854 (2d Cir. 1988), revised, 858 F.2d 834 (2d Cir. 1988).

CRS-15
Hammad is generally compatible with the law in other jurisdictions in its view
that suppression is an inappropriate sanction28 but that a prosecutor's non-lawyer alter
egos may trigger application of the rule.29 Most cases elsewhere both before and
after, however, have held that the rule can only be violated after a client has been
taken into custody, arrested, indicted or otherwise formally charged, i.e., after there
is a specific “matter” with respect to which the client is represented.30
The Department of Justice responded to Hammad with the so-called Thornburgh
memorandum, printed in, In re Doe, 801 F.Supp. 478, 489 (D.N.M. 1992), a
memorandum from Attorney General Thornburgh to all Justice Department litigators
announcing that, “it is the Department's position that contact with a represented
individual in the course of authorized law enforcement activity does not violate DR
7-104. The Department will resist, on Supremacy Clause grounds, local attempts to
curb legitimate federal law enforcement techniques. . . . Accordingly, an attorney
employed by the Department, and any individual acting at the direction of that

28

United State v. Lowery, 166 F.3d 1119, 1125 (11th Cir. 1999); State v. Baker, 931 S.W.2d
232, 236 (Tenn.Crim.App. 1996); State v. Decker, 138 N.H. 432, 438, 641 A.2d 226, 230
(1994); United States v. Heinz, 983 F.2d 609, 614 (5th Cir. 1993); United States v. Ryans,
903 F.2d 731, 740 (10th Cir. 1990); Suarez v. State, 481 So.2d 1201, 1207 (Fla. 1986); State
v. Morgan, 231 Kan. 472, 479, 646 P.2d 1064, 1070 (1982); People v. Green, 405 Mich.
273, 293-94, 274 N.W.2d 448, 454-55 (1979); but see, Henrich v. State, 666 S.W.2d 185,
(Tex.App. 1983)(rule violation constitutes a violation of state law triggering the general
suppression statute); contra, United States v. Powe, 9 F.3d 68, 69 (9th Cir.
1993)(suppression is a permissible but not required remedy for violation of the rule; United
States. v. DeVillio, 983 F.2d 1185, 1192 (2d Cir. 1993)(same); State v. Miller, 600 N.W.2d
457, 467 (1999).
By the same token, most are of the view that the admission of evidence produced as a
consequence of a no contact rule violation does not justify dismissing charges or overturning
a conviction, United States v. Lopez, 4 F.3d 1455, 1463-464 (9th Cir. 1993); State v. Ford,
793 P.2d 397, 400 (Utah App. 1990); Suarez v. State, 481 So.2d 1201, 1207 (Fla. 1986);
People v. Green, 405 Mich. 273, 293, 274 N.W.2d 448, 454 (1979); United States v.
Thomas, 474 F.2d 110, 112 (10th Cir. 1973)
29

E.g., State v. Lang, 702 A.2d 135, 137 (Vt. 1997); United States v. Heinz, 983 F.2d 609,
613 (5th Cir. 1993); United States v. Ryans, 903 F.2d 731, 833 (10th Cir. 1990); United
States v. Lemonakis, 485 F.2d 941, 956 (D.C.Cir. 1973)
There is general agreement on a threshold question as well, i.e., the no contact rule is not
limited to cases involving civil litigants, but applies with at least equal force in criminal cases,
United States v. Lopez, 4 F.3d 1455, 1459-460 (9th Cir. 1993); State v. CIBA-GEIGY Corp.,
247 N.J.Super. 314, 317, 589 A.2d 180, 181 (1991); State v. Ford, 793 P.2d 397, 399-400
(Utah App. 1990); Suarez v. State, 481 So.2d 1201, 1205 (Fla. 1985); United States v.
Thomas, 474 F.2d 110, 111 (10th Cir. 1973); United States v. Springer, 460 F.2d 1344,
1354 (7th Cir. 1972).
30

E.g., United States v. Balter, 91 F.3d 427, 436 (3d Cir,. 1996); State v. Roers, 520
N.W.2d 752, 758-79 (Minn.App. 1994); United States v. Powe, 9 F.3d 68, 69 (9th Cir.
1993); United States v. Heinz, 983 F.2d 609, 613 (5th Cir. 1993); United States v. Ryans,
903 F.2d 731, 739-40 (10th Cir. 1990); United States v. Sutton, 801 F.2d 1346, 1366
(D.C.Cir. 1986); United States v. Dobbs, 711 F.2d 84, 86 (8th Cir. 1983); State v. Irving,
231 Kan. 258, 262, 644 P.2d 389, 394 (1982); United States v. Durham, 475 F.2d 208, 211
(7th Cir. 1973).

CRS-16
attorney, is authorized to contact or communicate with any individual in the course
of an investigation or prosecution unless the contact or communication is prohibited
by the Constitution, statute, Executive Order, or applicable federal regulation,” id. at
493.31

Lopez & Ferrara: Client Initiated Contacts
The Department's position was not well received in either the Lopez32 or the
Ferrara33 case, both of which grew out of contacts initiated by client/ defendants in
custody, rather than by government authorities during a pre-indictment investigation.
Lopez retained Tarlow to represent him after he and two co-defendants had been
indicted on drug charges. Tarlow, however, indicated that it was his policy not to
engage in plea negotiations and that Lopez should retain another attorney if he were
interested in plea bargaining. After Twitty, the attorney for one his co-defendants,
indicated that the government might consider probation if Lopez and Twitty's client
cooperated, Lopez agreed to meet with the prosecutor to discuss a plea bargain. He
did so without Tarlow's knowledge, fearing that Tarlow might refuse to represent him
at trial if negotiations failed. The prosecutor arranged for Lopez to appear before a
magistrate to be advised of his rights and be warned of the dangers of negotiating with
the government without having counsel present. Lopez met with federal prosecutors
without Tarlow's knowledge, but the plea bargains were never finalized. Tarlow
learned of the negotiations from the attorney for the third defendant. Tarlow
withdrew as attorney for Lopez and Lopez moved to dismiss his indictment based on
the asserted violation of the California no contact rule that had been adopted for the
federal district court by the local rule.
The district court granted the motion to dismiss, United States v. Lopez, 765
F.Supp. 1433 (N.D.Cal. 1991). The Court of Appeals agreed that the prosecutor had
violated the no contact rule, but found that the district court had exceeded its
authority when it dismissed the indictment, United States v. Lopez, 4 F.3d 1455,
1463-464 (9th Cir. 1993).
The court rejected the contentions that since Lopez had initiated the contact, he
had waived the benefits of the no contact rule, and that he was represented by Tarlow
only with respect to any subsequent trial and not with respect to the plea bargain
negotiations. The no contact rule imposes a duty upon attorneys that cannot be

31

The foundation for the Thornburgh memorandum had been laid several years earlier in an
opinion from the Department's Office of Legal Counsel, Ethical Restraints of the ABA Code
of Professional Responsibility on Federal Criminal Investigations, 4B OP.OFF.LEG.C. 576
(1980).
32

United States v. Lopez, 765 F.Supp. 1433 (N.D.Cal. 1991), vac'd and remanded, 4 F.3d
1455 (9th Cir. 1993); In re Twitty, 2 Cal.State Bar Ct.Rprt. 664 (1994)(disciplinary
proceedings against defense counsel arising out the Lopez case).
33

United States v. Ferrara, 847 F.Supp. 964 (D.D.C. 1993), aff'd on jurisdictional grounds,
54 F.3d 825 (D.C.Cir. 1995); In re Doe, 801 F.Supp. 478 (D.N.M. 1992)(related case arising
out the same facts); In re Howes, 123 N.M. 311, 940 P.2d 159 (1997)(disciplinary
proceedings the prosecutor in Ferrara).

CRS-17
waived by the contacted party, 4 F.3d at 1462, and as a factual matter Lopez was
represented by Tarlow at the time of contact with the prosecutor, 4 F.3d at 1462-463.
The government's argument that the contact come within the rule's "authorized
by law" exception because of the Thornburgh memorandum fared no better. Since
the general statutory authorities cited by the government did not specifically authorize
the contact, they were found insufficient to qualify for the rule's "authorized by law"
exception, 4 F.3d at 1461.34 Nor could the magistrate's approval qualify, since the
lower court found that the magistrate had been materially misled, 4 F.3d at 1461-262.
Like Lopez, the Ferrara case35 grew out of a contact initiated by a client without
his attorney's knowledge. Smith was arrested and charged with murder in the District
of Columbia. The public defender assigned to represent him refused to give
permission to allow the prosecutor to talk to Smith unless Smith were granted
immunity. Smith, nevertheless, frequently contacted and discussed the case with a
detective assigned to it who was acting under the prosecutor's instructions. Smith
even phoned the detective in the prosecutor's office and raised the matter in a
conversation to which the prosecutor was a party. When the public defender learned
of the conversations, she sought to have the resulting evidence suppressed. The court
denied the motion but the matter was referred to the disciplinary authorities of the
New Mexico bar where the prosecutor was admitted. The prosecutor had the case
removed to the district court in New Mexico which remanded it back to state
authorities.36 The Department then sued to enjoin further inquiry by Ferrara, the Chief
Disciplinary Counsel for the New Mexico Supreme Court's Disciplinary Board. The
34

The government claimed authority under 28 U.S.C. 509 (vesting the functions of
Department of Justice officers, employees and agencies in the Attorney General), 515
(authorizing Department of Justice officials to represent the United States in legal
proceedings, 516 (reserving authority to conduct litigation on behalf of the United States to
the Department of Justice), 533 (authorizing the Attorney General to appoint officials to
conduct the business of the Department of Justice), and 547 (empowering United States
Attorneys within their districts to prosecute, defend, and appear on behalf of the United
States).
The government did not cite the Thornburgh Memorandum as authorization: "The
government, on appeal, has prudently dropped its dependence on the Thornburgh
Memorandum in justifying AUSA Lyons' conduct, and has thereby spared us the need of
reiterating the district court's trenchant analysis of the inefficacy of the Attorney General's
policy statement," 4 F.2d at 1458.
35

In re Doe, 801 F.Supp. 478 (D.N.M. 1992); United States v. Ferrara, 847 F.Supp. 964
(D.D.C. 1993), aff'd on jurisdictional grounds, 54 F.3d 825 (D.C.Cir. 1995); In re Howes,
123 N.M. 311, 940 P.2d 159 (1997)(disciplinary proceedings with an extensive statement of
facts).
36

In doing so the court rejected the interpretation of an earlier court, Kolibash v. Committee
on Legal Ethics, 872 F.2d 571 (4th Cir. 1989), which had concluded that state disciplinary
proceedings were removable to federal court under 28 U.S.C. 1442, In re Doe, 801 F.Supp.
at 481-84. Like Lopez, the court was unpersuaded by the arguments that the Department of
Justice's general statutory authority or the Thornburgh memorandum either preempted state
no contact rules or constituted qualified for the "authorized by law" exception to the no
contact rule, 801 F.Supp. at 484-87. It found the claim of prosecutorial immunity equally
uncompelling, 801 F.Supp. at 487-89.

CRS-18
effort failed for want of personal jurisdiction over Ferrara in the District of Columbia
where the suit was brought.37 The New Mexico Supreme Court subsequently found
that the prosecutor had violated the no contact rule, publicly censured him, and
ordered him to pay $8,663.52 as reimbursement for the cost of the disciplinary
proceeding.38

O'Keefe: No Contact & Corporate Civil Enforcement
O'Keefe features the no contact rule in a corporate, civil law enforcement
context.39 It originated as a qui tam action brought against a government contractor
for overcharging.40 Following initial discovery, the contractor sought a protective
order requiring the government to refrain from contacting the company's employees
in violation of the no contact rule. The district court granted the order, denying that
contacts authorized by federal regulation then in effect (28 C.F.R. Pt. 77 (1995))
came within the “authorized by law” exception to the no contacts rule.41 The court of
appeals agreed and added that the regulations exceed the Attorney General's
authority.42

Justice Department Regulations After the Amendment
The Justice Department promulgated revised regulations after the effective date
of the Amendment, 28 C.F.R. Pt. 77 (appended), which eliminate the explicit rejection
of state no contact rules found in their predecessors. The new regulations, however,
appear to require adherence to local no contact rules (and other local state ethical
standards) only following a formal judicial appearance or when the government
37

Although the appellate court decision was limited to the jurisdictional question, United
States v. Ferrara, 54 F.3d 825 (D.C.Cir. 1995), the district court in Ferrara, jointed Lopez
and Doe in rejection of the Supremacy argument, United States v. Ferrara, 847 F.Supp. at
958-70.
38

The Supremacy and "authorized by law" arguments proved unavailing here too, In re
Howes, 123 N.M. 311, 318-21, 940 P.2d 159, 166-69 (1997). The severity of the sanctions
was driven by the prosecutor's substantial legal experience (i.e., the violation could not be
blamed on either ignorance or incompetence), and by his refusal to "accept or even recognize
the wrongful nature of his conduct," 123 N.M. at 322, 940 P.2d at 170.
The district court in Lopez declined to refer the matter to bar authorities, but Tarlow
complained of the prosecutor's conduct to authorities in Arizona where the prosecutor was
admitted, 765 F.Supp. at 1462; In re Twitty, 2 Cal.State Bar.Ct.Rprt. 664, 672 (1994). There
does not appear to have been any reported action on the complaint.
39

United States ex rel. O'Keefe v. McDonnell Douglas Corp., 961 F.Supp. 1288 (E.D.Mo.
1997), aff'd, 132 F.2d 1252 (8th Cir. 1998).
40

United States ex rel. O'Keefe, 918 F.Supp. 1347 (E.D.Mo. 1996).

41

961 F.Supp. at 1293-296. The regulations in question, the so-call Reno regulations, are
a revised form of the Thornburgh Memorandum, promulgated by Attorney General Reno, 59
Fed.Reg. 39928 (Aug. 4,1994).
42

132 F.3d at 1254-257.

CRS-19
attorney is locally licensed. The regulations repeat the command of the Amendment
that government attorneys must follow the local rules “where such attorney engages
in that attorney’s duties,” but only as the phrase is defined in section 77.2 of the
regulation, 28 C.F.R. §77.3. “The phrase where such attorney engages in that
attorney’s duties identifies which rules of ethical conduct a Department attorney
should comply with, and means . . . (i) if there is a case pending, the rules of ethical
conduct adopted by the local federal court or state court before which the case is
pending; or (ii) if there is no case pending, the rules of ethical conduct that would be
applied by the attorney’s state of licensure,” 28 C.F.R. §77.2(j). Although the phrase
“case pending” is not defined, the term “case” is: “The term case means any
proceeding over which a state or federal court has jurisdiction, including criminal
prosecutions and civil actions. This term also includes grand jury investigations and
related proceedings (such as motions to quash grand jury subpoenas and motions to
compel testimony), applications for search warrants, and applications for electronic
surveillance,” 28 C.F.R. §77.2.
This may be insufficient in a state which applies its no contact rule prior to the
initiation of formal judicial proceedings, cf., State v. Miller, 600 N.W.2d 457, 467
(Minn. 1999) (“Thus we do not perceive that the application of MRPC 4.2
[Minnesota’s no contact rule] should be limited, in a criminal context, to contacts with
an attorney Adverse counsel’s contacts with an attorney’s client can be disruptive and
deleterious to the attorney’s’s relationship with a client irrespective of whether the
client has been charged with a crime, and the need for the an attorney’s counsel in an
adverse interview is certainly no less before the client is charged than after”).’s client
after the client has been charged.

Ethics and the Grand Jury
One criticism of the Amendment is that it fails to overturn Hammad, Lopez,
Ferrara, and O'Keefe. A second area of Department of Justice concern is the impact
of ethical standards upon federal grand jury practice, i.e., requiring prosecutors to
disclose exculpatory evidence to the grand jury and limiting the circumstances under
which a prosecutor may subpoena defense attorneys to appear before the grand jury.43
It is an area where the ethical precepts are more recently developed, where some
courts have been more receptive to the Department's arguments, and where internal
Department guidelines seem to have been effective.

43

See generally, Bowman, A Bludgeon by any Other Name: The Misuse of "Ethical Rules"
Against Prosecutors to Control the Law of the State, 9 GEORGETOWN JOURNAL OF LEGAL
ETHICS 665 (1996) Zacharias, A Critical Look at Rules Governing Grand Jury Subpoenas
of Attorneys, 76 MINNESOTA LAW REVIEW 917 (1992); Cramton & Udell, State Ethics Rules
and Federal Prosecutors: The Controversies Over the Anti-Contact and Subpoena Rules,
53 UNIVERSITY OF PITTSBURGH LAW REVIEW 291 (1992).

CRS-20

Attorney Subpoenas
Rule 3.8(f) of the American Bar Association's Model Rules of Professional
Conduct declares that:
The prosecutor in a criminal case shall . . . (f) not subpoena a lawyer in a
grand jury or other criminal proceeding to present evidence about a past or
present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any
applicable privilege;
(2) the evidence sought is essential to the successful completion of an
ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information.
The standard is of relatively recent origin and has been adopted by only a few
jurisdictions.44 Its application, or the application of an earlier version which required
judicial approval for such subpoenas, has been found contrary to federal law by some
courts. The rule is a product of complaints of grand jury abuse by federal prosecutors
that appear to have been addressed by internal Justice Department regulation.45
It first appeared as a Massachusetts rule binding on members of the state bar46
and adopted by the federal district court under local rule.47 It was challenged

44

The States of Alaska, Colorado, Louisiana, Massachusetts, North Carolina, Oklahoma,
Pennsylvania, Rhode Island, Tennessee, and Virginia have such provisions (text appended),
that have been adopted along with the other state rules by the district courts in Alaska,
Colorado, Louisiana, Massachusetts, North Carolina, Oklahoma, Rhode Island. In addition,
the provisions of the American Bar Association Code of Professional Conduct have been
adopted by the federal district courts in Delaware, Georgia, Montana and West Virginia and
for the Northern District of New York, the Western District of North Carolina, and the Middle
and Southern Districts of Alabama (text of federal adoption rules are appended).
45

The United States Attorneys' Manual advises federal prosecutors that the head of the
Justice Department's Criminal Division must approve attorney subpoenas issued to secure
client information and informs them that approval will be based on considerations comparable
to those in the ABA rules. In considering a request to approve the issuance of a subpoena to
an attorney for information relating to the representation of a client, the Assistant Attorney
General of the Criminal Division applies the following principles: The information sought
shall not be protected by a valid claim of privilege. All reasonable attempts to obtain the
information from alternative sources shall have proved to be unsuccessful. In a criminal
investigation or prosecution, there must be reasonable grounds to believe a crime has been or
is being committed, and that the information sought is reasonably needed for the successful
completion of the information or prosecution. . . ." UNITED STATES ATTORNEYS' MANUAL §913.410 (1997)(a version of the text of §9-13.410 and the accompanying CRIMINAL RESOURCE
MANUAL section is appended.
46

Mass.S.Jud.Ct.R., R. 3:08, PF15 ("It is unprofessional conduct for a prosecutor to
subpoena an attorney to a grand jury without prior judicial approval in circumstances where
the prosecutor seeks to compel the attorney/witness to provide evidence concerning a person
who is represented by the attorney/witness").
47

D.Mass.Local.R., R.5(d)(4)(B).

CRS-21
immediately, and at first unsuccessfully, as contrary to the Supremacy Clause and the
Federal Rules of Criminal Procedure, and as beyond the supervisory power of the
district court.48 When the Pennsylvania Supreme Court adopted the rule,49 however,
the Third Circuit found the Justice Department arguments more persuasive.50
The Circuits remain divided on the issue in spite of passage of the Amendment.
The Tenth Circuit has concluded that the Amendment obviates any Supremacy Clause
problem and confirms that the rule is within the rule-making powers of the state and
lower federal courts.51 The First Circuit believes first that the Amendment does not
introduce state ethical rules into federal grand jury practice or any other area of
federal activity because it does not constitute a clear, specific congressional mandate
and that the rule exceeds the rule-making powers the state and lower federal courts.52
Although the Justice Department regulations declare that the Amendment
“should not be construed in any way to alter federal substantive, procedural, or
evidentiary law,” 28 C.F.R. §77.1(b), and that the phrase “state laws and rules and
local federal court rules governing attorneys” describing the Amendment’s reach
“does not include: (1) any . . . rule . . . which does not govern ethical conduct, such
as rules of procedure, evidence, or substantive law, whether or not such rule is
included in a code of professional responsibility for attorneys,” 28 C.F.R. §77.2(h)(1).

Exculpatory Evidence
The Constitution requires the government in a criminal case to supply the
accused with any evidence in its possession material to his guilt, the credibility of
witnesses against him, or to the appropriate sentence to be imposed.53 There is no

48

United States v. Klubock, 639 F.Supp. 117 (D.Mass. 1986), aff'd 832 F.2d 649 (1st Cir.
1987), aff'd en banc by an equally divided court, 832 F.2d 664 (1st Cir. 1987); Whitehouse
v. United States District Court, 53 F.3d 1349 (1st Cir. 1995); but see, Stern v. United States
District Court, 214 F.3d 4 (1st Cir. 2000)(petition for rehearing en banc denied by equally
divided court).
49

Pa.R.Prof.Conduct, R. 3.10; the rule became applicable in the federal district courts in
Pennsylvania by virtue of their general adoption of the Pennsylvania state bar rules,
E.D.Pa.Civ.R., R.14; M.D.Pa.R., R.304; W.D.Pa.R., R.22.
50

Baylson v. Disciplinary Board, 975 F.2d 102 (3d Cir. 1992), aff'g, 764 F.Supp. 328
(E.D.Pa. 1991).
51

United States v. Colorado Supreme Court, 189 F.3d 1281, 1286-288 (10th Cir. 1999).

52

United States v. United States District Court, 214 F.3d 4, 19-21 (1st Cir. 2000)(petition
for rehearing en banc denied by an equally divided court). The rules before the Tenth and
First Circuits differed in that the rule in the First Circuit assigned the task of finding the three
threshold circumstances required for an attorney-client subpoena to the court while the rule
in the Tenth Circuit assigned it to the prosecutor. The First Circuit found the difference
critical when distinguishing its opinion from that of an earlier First Circuit panel in
Whitehouse v. United States District Court, 53 F.3d 1349 (1st Cir. 1995), and from the
opinion of the Tenth Circuit, Stern v. United States District Court, 214 F.3d at 16-7, 21.
53

Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972).

CRS-22
constitutional requirement, however, that the government disclose such exculpatory
evidence to the grand jury that indicts the accused.54 The states are divided as to
whether prosecutors have an ethical obligation to disclose exculpatory evidence to the
grand jury.
The ethics of the legal profession have long demanded that attorneys address the
courts candidly.55 In this vein, Rule 3.3(d) of the ABA Model Rules of Professional
Conduct notes that, “In an ex parte proceeding, a lawyer shall inform the tribunal of
all material facts known to the lawyer which will enable the tribunal to make an
informed decision, whether or not the facts are adverse.” In its comments upon the
special duties of public prosecutors under Rule 3.8, the ABA makes it clear that the
obligations of Rule 3.3(d) include the responsibility of prosecutors to disclose
exculpatory evidence to the grand jury:
A prosecutor has the responsibility of a minister of justice and not simply
that of an advocate. This responsibility carries with it specific obligations to see
that the defendant is accorded procedural justice and that guilt is decided upon
the basis of sufficient evidence. Precisely how far the prosecutor is required to
go in this direction is a matter of debate and varies in different jurisdictions.
Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating
to Prosecution Function, which in turn are the product of prolonged and careful
deliberation by lawyers experienced in both criminal prosecution and defense.
See also Rule 3.3(d) governing ex parte proceedings, among which grand jury
proceedings are included. Applicable law may require other measures by the
prosecutor and knowing disregard of those obligations or a systematic abuse of
prosecutorial discretion could constitute a violation of Rule 8.4 [i.e.,
professional misconduct]. ABA Model Code of Professional Conduct, R.3.8,
Comment [1] (emphasis added).
A majority of the states have adopted both Rule 3.3(d) and the comments under
Rule 3.8.56 Some have implicitly repudiated the notion that prosecutors have an

54

United States v. Williams, 504 U.S. 36 (1992).

55

ABA Canons of Ethics 22 ("The conduct of the lawyer before the Court and with other
lawyers should be characterized by candor and fairness. . .") (1908); ABA Code of
Professional Responsibility DR7-106(B)(1)("In presenting a matter to a tribunal, a lawyer
shall disclose: (1) Legal authority in the controlling jurisdiction known to him to be directly
adverse to the position of his client and which is not disclosed by opposing counsel").
56

Alaska R. of Prof.Conduct, R.3.3(d), R.3.8, Comment; Ariz.R. of Prof.Conduct, ER
3.3(d), R.3.8, Comment; Ark.R. of Prof.Conduct, R. 3.3(d), R.3.8, Comment; Conn.R. of
Prof.Conduct, R.3.3(d), R.3.8, Comment; Del.R. of Prof.Conduct, R.3.3(d), R.3.8, Comment;
Fla.R. of Prof.Conduct, R. 4-3.3, R. 4-3.8, Comment; Haw. R. of Prof.Conduct, R. 3.3(d),
R.3.8, Comment; Ind.R. of Prof.Conduct, R.3.3(d), R.3.8, Comment; Kan.S.Ct.R., R. 226,
Model R. of Prof.Conduct, R. 3.3(d), R.3.8, Comment; Ky.S.Ct.R., R. of Prof. Conduct,
R.3.3(d), R.3.8, Comment; Md.Lawyers' R. of Prof. Conduct, R. 3.3(d), R.3.8, Comment;
Mich.R. of Prof.Conduct, R. 3.3(d), R.3.8, Comment; Miss.R. of Prof. Conduct, R.3.3(d),
R.3.8, Comment; Mo.St.Ct.R., R.4-3.3(d), R.3.8, Comment; N.H.R.Prof.Conduct, R.3.3(d),
R.3.8, Comment; N.Mex.R.Prof.Conduct, R. 16-303D, R.16-308, Comment;
N.D.R.Prof.Conduct, R.3.3(f), R.3.8, Comment; Okla.R.Prof.Conduct, R.3.3(d), R.3.8,

CRS-23
obligation to disclose exculpatory evidence to the grand jury by deleting the reference
to 3.3(d)(italicized above) from the comment on the special duties of a public
prosecutor under Rule 3.8.57 Some have opted to adopt the Rules but not the
Comments.58 Others continue to use the formulation of the earlier ABA Code of
Professional Responsibility under which the issue does not arise.59 The pattern among
the federal courts is similarly diverse, since the vast majority have chosen to impose
standards compatible with those of the states in which they sit.
The United States Attorneys' Manual calls for disclosure in an apparently more
limited number of instances and alerts its prosecutors to the possible disciplinary
consequences within the Justice Department of a failure to comply:
In United States v. Williams, 112 S.Ct. 1735 (1992), the Supreme Court
held that the Federal courts' supervisory powers over the grand jury did not
include the power to make a rule allowing the dismissal of an otherwise valid
indictment where the prosecutor failed to introduce substantial exculpatory
evidence to a grand jury. It is the policy of the Department of Justice, however,
that when a prosecutor conducting a grand jury inquiry is personally aware of
substantial evidence that directly negates the guilt of a subject of the
investigation, the prosecutor must present or otherwise disclose such evidence
to the grand jury before seeking an indictment against such a person. While a
failure to follow the Department's policy should not result in dismissal of an
indictment, appellate courts may refer violations of the policy to the Office of
Professional Responsibility for review. UNITED STATES ATTORNEYS' MANUAL,
§9-11.233.

Comment; Pa.R.Prof.Conduct, R.3.3(d), R.3.8, Comment; R.I.R.Prof.Conduct, R.3.3(d),
R.3.8, Comment; S.C.App.Ct.R., R.407: R.3.3, R 3.8 Comment; Tex.State Bar R., Art.10,
§9: Tex.Code of Prof.Conduct, R.3.03(d), R.3.09, Comment; Utah R.Prof.Conduct, R.3.3(d),
R.3.8, Comment; Vt.R.Prof.Conduct, R.3.3(d), R.3.8, Comment; W.Va.R.Prof. Conduct,
R.3.3(d), R.3.8, Comment; Wis.S.Ct.R., R.20:3.3(d), R.20:3.8, Comment; Wyo.R. of
Prof.Conduct, R.3.3(d), R.3.8, Comment. See also, D.C.R. of Prof.Conduct, R.3.8: "The
prosecutor in a criminal case shall not . . . (g) In presenting a case to a grand jury,
intentionally interfere with the independence of the grand jury, preempt a function of the grand
jury, abuse the processes of the grand jury, or fail to bring to the attention of the grand jury
material facts tending substantially to negate the existence of probable cause."
57

Ala.R. of Prof.Conduct, R. 3.3, 3.8 Comment; Colo.R. of Prof.Conduct, R. 3.3, R.3.8
Comment; Mass.R. of Prof.Conduct, R. 3.3,.R. 3.8 Comment; Minn.R. of Prof.Conduct, R.
3.3, 3.8 Comment; Nev.S.Ct.R., RR.172, 179; N.J.Rules of Prof.Conduct, RPC 3.3, 3.8
Comment; N.C.R.Prof.Conduct R.3.3, R. 3.8 Comment; S.D.R. of Prof.Conduct, R. 3.3, 3.8
Comment; R. of S.Ct. of Va., Pt.6, §II, RR.R. 3.3, 3.8 Comment.
58

Idaho R. of Prof. Conduct, R. 3.3, R. 3.8; Ill.R. of Prof.Conduct, R.3.3, R.3.8; La.R. of
Prof. Conduct, R.3.3, R.3.8; Me.Code of Prof. Responsibility, R.3.3, R.3.8;
Mont.R.Prof.Conduct, R.3.3, R.3.8; Wash.R.Prof.Conduct, R.3.3, R.3.8.
59

Ga. Code of Prof.Responsibility; Iowa Code of Prof. Responsibility; Neb. Code of
Prof.Responsibility; N.Y. R. of Ct. §1200.35; Ohio Code of Prof. Responsibility; Ore. Code
of Prof.Responsibility; Tenn.S.Ct.R., R.8.

CRS-24

Prosecutors and Undercover Tactics
Rule 4.1(a) of the ABA Model Rules of Professional Conduct declares that “[i]n
the course of representing a client a lawyer shall not knowingly: (a) make a false
statement of material fact or law to a third person;” and Rule 8.4(c) that it “is
professional misconduct for a lawyer to . . . (c) engage in conduct involving
dishonesty, fraud, deceit or misrepresentation.” Its predecessors, Disciplinary Rules
DR7-102(A)(5) and DR1-102(A)(4) of the ABA Model Code of Professional
Responsibility are similarly worded. In one form or another, they are in effect in
virtually every jurisdiction.60
The Oregon Supreme Court has concluded that its versions of these two honesty
disciplinary rules apply to instances where private attorneys misidentify themselves
and make other false statements in the course of an undercover investigation of
possible fraud committed against a client, In re Gatti, 330 Ore. 517, 8 P.3d 966
(2000). Gatti had claimed the benefit of an “investigation exception” to the
prohibitions. The Oregon Attorney General and the United States Attorney for
Oregon argued the Court should recognize an exception for government undercover

60

Ala.R.Prof.Conduct, RR. 4.1(a), 6.4(c); AlaskaR.Prof.Conduct, RR.4.1(a), 8.4(c); Ariz.R
Prof.Conduct, ERR 4.1(a), 8.4(c); Ark.R.Prof.Conduct, RR. 4.1(a), 8.4(c); Colo.R. Prof.
Conduct, RR. 4.13(a), 8.4(c); Conn.R.Prof.Conduct, RR.4.1(a), 8.4(3); Del.R.Prof. Conduct,
RR.4.1(a), 8.4(c); D.C.R.Prof.Conduct, RR.4.3(a), 8.4(c); Fla.R. Prof.Conduct, RR. 44.1(a), 4-8.4(c); Ga. Code of Prof.Responsibility, DR7-102(A)(5), DR1-102(A)(4); Haw.
R. Prof. Conduct, RR. 4.1(a), 8.4(c); IdahoR.Prof.Conduct, RR. 4.1,(a), 8.4(c); Ill.R.
Prof.Conduct, RR.4.1(a), 8.4(c); Ind.R.Prof. Conduct, RR.4.1(a), 8.4(c); Iowa Code of Prof.
Responsibility, DR 7-102(A)(5), DR1-102(A)(4); Kan.S.Ct.R., R. 226, Model R. of
Prof.Conduct, RR. 4.1(a), 8.4(c); Ky.S.Ct. R.3.130, R. of Prof. Conduct, RR.4.1, 8.3(c);
La.R. Prof. Conduct, RR.4.1, 8.4(c); Me.Code of Prof. Responsibility, RR.3.7(b), 3.2(f)(3);
Md.Lawyers' R.Prof. Conduct, R. 4.1(a)(1), 8.4(c); Mass.R. Prof. Conduct, RR. 4.1(a),
8.4(c); Mich.R. Prof. Conduct, RR. 4.1, 8.4(c); Minn.R. Prof.Conduct, RR. 4.1, 8.4(c);
Miss.R. Prof. Conduct, R4.1(a); Mo.R. Prof. Conduct, RR.4-4.1(a), 4-8.4(c); Mont.R.
Prof.Conduct, R.4.1(a), 8.4(c); Neb. Code of Prof.Responsibility, DR 7-102(A)(5), DR1102(A)(4); Nev.S.Ct.R., RR.181, 203; N.H.R.Prof. Conduct, RR.4.1(a), 8.4(c);N.J.Rules of
Prof. Conduct, RRPC 4.1(a)(1), 8.4(c); N.Mex.R. Prof.Conduct, RR.16-401, 16-804[C];
N.Y. R. of Ct. §§1200.33[DR7-102](a)(5), 1200.3[DR1-102](a)(4); N.C.R.Prof.Conduct
RR.4.1, 8.4(c); N.D.R.Prof.Conduct, R. 4.1;Ohio Code of Prof. Responsibility, DR7102(A)(5), DR1-102(A)(4); Okla.R.Prof.Conduct, RR.4.1(a), 8.4(c); Ore.Code of Prof.
Responsibility, DR7-102(A)(5), DR1-102(A)(3); Pa.R.Prof.Conduct, RR.4.1(a), 8.4(c);
R.I.R.Prof.Conduct, RR.4.1(a), 8.4(c); S.C.App.Ct.R., R.407: RR.4.1(a), 8.4(c);
S.D.Cod.Laws 16-18App., R. Prof.Conduct, RR.4.1, 8.4(d); Tenn.S.Ct.R., R.8:DR7102(A)(5), DR1-102(A)(5); Tex.State Bar R., Art.10, §9: Tex.Code of Prof.Conduct,
RR.4.01, 8.04(a)(3); Utah R.Prof. Conduct, RR.4.1(a), 8.4(c); Vt. R.Prof. Conduct, RR4.1,
8.4(c); R. of S.Ct. of Va., Pt.6, §II, RR.4.1(a), 8.4(c); Wash.R.Prof. Conduct, RR.4.1(a),
8.4(c); W.Va.R.Prof.Conduct, RR.4.1(a), 8.4(c); Wis.S.Ct.R., RR.20: 4.1(a), 20:8.4(c);
Wyo.R. of Prof. Conduct, RR.4.1(a), 8.4(c).

CRS-25
operations. The Court refused to recognize either exception, 330 Ore. at 530-33, 8
P.3d at 974-76. There are few comparable decisions elsewhere.61

Who Should Regulate the Ethics of Federal Prosecutors
Questions of undercover investigations, grand jury practice, and client contact
aside, the fundamental objection to the McDade-Murtha Amendment is its
preservation of the twin notions that federal prosecutors, like other lawyers, should
be bound by state regulation of the practice of law and that the rules governing the
practice of law in the federal courts should mirror the rules of the states in which they
sit, subject to modification by the federal courts in a particular district. It is a theme
that runs throughout federal law: compatibility versus uniformity. Should federal law
be the same nation wide or should attorneys in any given state be subject to different
ethical standards depending upon whether federal or state law governs a particular
case.
The alternatives for future Congressional action include provisions that: (1)
regulate the practice of law generally (an option with obvious constitutional
limitations), (2) regulate the ethical standards of federal attorneys, (3) delegate the
authority either to regulate the practice of law or to regulate the practice of law by
federal attorneys to (a) the states, (b) the federal courts, (c) the Attorney General, or
(d) some administrative rule making body like the Judicial Conference, or (4) address
no contact rule, grand jury practice, undercover questions individually.62

61

Gatti cites conflicting federal authority for whether private attorneys enjoy an investigation
exception, 330 Ore. at 531, 8 P.3d at 975, citing, “Apple Corps Ltd. v. International
Collectors Soc., 15 F.Supp.2d 456, 475 (D.N.J. 1998)(lawyers in private practice may use
an undercover investigator to detect ongoing violations rather of the law * * *, especially
where it would be difficult to discover the violations by other means). But see Sequa Corp.
v. Lititech Inc., 807 F.Supp. 653, 663 (D.Colo. 1992)(lawyers in private practice may not use
deception to investigate disciplinary violations rather than reporting conduct to authorities).”
In a related matter, the jurisdictions to consider the question generally recognize a law
enforcement exception for otherwise lawful wiretapping and electronic surveillance, see,
Wiretapping, Tape Recorders & Legal Ethics: Questions Posed by Attorney Involvement in
Secretly Recording Conversation, CRS REP. NO. 98-280 (Mar. 6, 1998).
62

The relative strengths and weaknesses of these alternatives are beyond the scope of this
report, see generally, Uniform Federal Rules of Attorney Conduct: A Flawed Proposal, 111
HARVARD LAW REVIEW 2063 (1998); A Call for a Uniform Standard of Professional
Responsibility in the Federal Court System: Is Regulation of Recalcitrant Attorneys at the
District Level Effective? 66 UNIVERSITY OF CINCINNATI LAW REVIEW 901 (1998); Green,
Whose Rules of Professional Conduct Should Govern Lawyers in Federal Court and How
Should The Rules Be Created? 64 GEORGE WASHINGTON LAW REVIEW 460 (1996); Little,
Who Should Regulate the Ethics of Federal Prosecutors? 65 FORDHAM LAW REVIEW 355
(1996); Zacharias, Who Can Best Regulate the Ethics of Federal Prosecutors, or, Who
Should Regulate the Regulators? Response to Little, 65 FORDHAM LAW REVIEW 429 (1996);
Developments in the Law — Lawyers' Responsibilities and Lawyers' Responses, 107
HARVARD LAW REVIEW 1547 (1994); Wilkins, Who Should Regulate Lawyers? 105
HARVARD LAW REVIEW 799 (1992); Abel, Why Does the ABA Promulgate Ethical Rules?,
59 TEXAS LAW REVIEW 639 (1981); AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW:

CRS-26

Appendices
Bibliography
Books & Articles
Abel, Why Does the ABA Promulgate Ethical Rules?, 59 TEXAS LAW REVIEW 639 (1981)
AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW: THE LAW GOVERNING LAWYERS
(Council Draft No. 12)(1996)
Bowman, A Bludgeon by any Other Name: The Misuse of "Ethical Rules" Against
Prosecutors to Control the Law of the State, 9 GEORGETOWN JOURNAL OF LEGAL ETHICS
665 (1996)
Burke, Reconciling Professional Ethics and Prosecutorial Power: The No contact Rule
Debate, 46 STANFORD LAW REVIEW 1635 (1994)
Cramton & Udell, State Ethics Rules and Federal Prosecutors: The Controversies Over the
Anti-Contact and Subpoena Rules, 53 UNIVERSITY OF PITTSBURGH LAW REVIEW 291 (1992)
Delonis & Leibson, State Codes of Ethics and the Federal Lawyer: Refighting the Civil War,
48 FEDERAL LAWYER 23 (2001)
Dash, Justice Department Contacts With Represented Persons: An Alarming Assertion of
Power, 65 JUDICATURE 137 (1994)
Flowers, A Code of Their Own: Updating the Ethics Codes to Include the Non-Adversarial
Roles of Federal Prosecutors, 37 BOSTON COLLEGE LAW REVIEW 923 (1996)
Gleeson, Supervising Criminal Investigations: The Proper Scope of the Supervisory Power
of Federal Judges, 64 JOURNAL OF LAW AND POLICY 423 (1997)
Green, Policing Federal Prosecutors: Do Too Many Regulators Produce Too Little
Enforcement?, 64 ST. THOMAS LAW REVIEW 69 (1995)
, A Prosecutor's Communication With Defendants: What Are the Limits? 24 CRIMINAL
LAW BULLETIN 283 (1988)
, Whose Rules of Professional Conduct Should Govern Lawyers in Federal Court and
How Should the Rules Be Created, 64 GEORGE WASHINGTON LAW REVIEW 460 (1996)
Lidge, Government Civil Investigators and the Ethical Ban on Communicating With
Represented Parties, 67 INDIANA LAW JOURNAL 549 (1992)
Little, Who Should Regulate the Ethics of Federal Prosecutors, 65 FORDHAM LAW REVIEW
355 (1996)

THE LAW GOVERNING LAWYERS (Council Draft No. 12)(1996).
Legislative proposals in the 107th Congress are discussed in a separate report entitled
McDade-Murtha Amendment: Legislation in the 107th Congress Concerning Ethical
Standards for Justice Department Litigators, CRS REP. NO. RL (Dec. 18, 2001).

CRS-27
Mashburn, A Clockwork Orange Approach to Legal Ethics: A Conflicts Prospective on the
Regulation of Lawyers by Federal Courts, 8 GEORGETOWN JOURNAL OF LEGAL ETHICS 473
(1995)
Morton, Seeking the Elusive Remedy for Prosecutorial Misconduct: Suppression, Dismissal,
or Discipline, 7 GEORGETOWN JOURNAL OF LEGAL ETHICS 1083 (1995)
Thornburgh, Ethics and the Attorney General: The Attorney General Responds, 74
JUDICATURE 290 (1994)
United States Congress, Ethical Standards for Federal Prosecutors Act of 1996: Hearings
Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the
Judiciary, 104th Cong., 2d Sess. (1996)
, Exercise of Federal Prosecutorial Authority in a Changing Legal Environment:
Hearing Before the Government Information, Justice and Agriculture Subcomm. of the
House Comm. on Government Operations, 101st Cong., 2d Sess. (1990)
United States Department of Justice, Attorney General Reno, Communications with
Represented Persons: Supplementary Information, 59 Fed.Reg. 39,928 (1994)
, Attorney General Thornburgh, Memorandum to All Justice Department Litigators . . .
[In re] Communication with Persons Represented by Counsel (June 8, 1989), appended to,
In re Doe, 801 F.Supp. 478, 489-93 (D.N.M. 1992)
, Office of Legal Counsel, Ethical Restraints of the ABA Code of Professional
Responsibility on Federal Criminal Investigations, 4B OPINIONS OF THE OFFICE OF LEGAL
COUNSEL 576 (1980)
, UNITED STATES ATTORNEYS MANUAL
, CRIMINAL RESOURCE MANUAL
Wilkins, Who Should Regulate Lawyers? 105 HARVARD LAW REVIEW 799 (1992)
Zacharias, A Critical Look at Rules Governing Grand Jury Subpoenas of Attorneys, 76
MINNESOTA LAW REVIEW 917 (1992)
, Federalizing Legal Ethics, 73 TEXAS LAW REVIEW 335 (1994)
, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice, 44
VANDERBILT LAW REVIEW 45 (1991)
, Who Can Best Regulate the Ethics of Federal Prosecutors, or, Who Should Regulate
the Regulators? Response to Little, 65 FORDHAM LAW REVIEW 429 (1996)
Zacharias & Green, The Uniqueness of Federal Prosecutors, 88GEORGETOWN LAW
JOURNAL 207 (2000)
Notes & Comments
The Big Chill: Negative Effects of the McDade Amendment and the Conflict Between
Federal Statutes, 14 GEORGETOWN JOURNAL OF LEGAL ETHICS 707 (2001)

CRS-28
A Call for a Uniform Standard of Professional Responsibility in the Federal Court System:
Is Regulation of Recalcitrant Attorneys at the District Level Effective? 66 UNIVERSITY OF
CINCINNATI LAW REVIEW 901 (1998)
The Continuing Conflict Over the Application of Model Rule 4.2 to Federal Attorneys, 44
AMERICAN UNIVERSITY LAW REVIEW 855 (1995)
Developments in the Law — Lawyers' Responsibilities and Lawyers' Responses, 107
HARVARD LAW REVIEW 1547 (1994)
FBA Questions Measure Targeting Federal Prosecutors, 45 FEDERAL LAWYER 5 (1998)
Federal Prosecutor, State Ethics Regulations, and the McDade Amendment, 113 HARVARD
LAW REVIEW 2080 (2000)
The Federal Prosecutors Ethics Act: Solution or Revolution, 86 IOWA LAW REVIEW 1251
(2001)
Federalizing the No contact Rule: The Authority of the Attorney General, 33 AMERICAN
CRIMINAL LAW REVIEW 189 (1995)
Is DoJ Above the Rules? The Department's Bid to Exempt Lawyers From Contact Rules Is
Blasted by States' Chief Justices, 84 AMERICAN BAR ASSOCIATION JOURNAL 26 (November
1997)
Lawyers Ethics—One Size Fits All? A Judicial Conference Committee Proposes Standard
Rules for Federal Courts, 84 AMERICAN BAR ASSOCIATION JOURNAL 28 (July 1998)
Limiting the Prosecutor's Use of Informants: The Second Circuit's Misreading of DR 7104(A)(1), 67 WASHINGTON UNIVERSITY LAW QUARTERLY 613 (1989)
Prosecutorial Ethics Under the Reno Rule: Authorized by Law?, 14 CRIMINAL JUSTICE
ETHICS 17 (1995)
Reconciling Professional Ethics and Prosecutorial Power: The No contact Rule Debate, 46
STANFORD LAW REVIEW 1635 (1994)
Seeking the Elusive Remedy for Prosecutorial Misconduct: Suppression, Dismissal, or
Discipline, 7 GEORGETOWN JOURNAL OF LEGAL ETHICS 1083 (1994)
Uniform Federal Rules of Attorney Conduct: A Flawed Proposal, 111 HARVARD LAW
REVIEW 2063 (1998)
Who Has the Last Word? An Examination of the Authority of State Grievance Committees
to Investigate and Discipline Prosecutors for Breach of Ethics, 22 JOURNAL OF THE LEGAL
PROFESSION 201 (1998)
Wisdom Without Power: The Department of Justice's Attempt to Exempt Federal
Prosecutors from State No contact Rules, 71 NEW YORK UNIVERSITY LAW REVIEW 1067
(1996)

CRS-29

State Standards of Professional Conduct
The No Contact Rule
Alabama: Ala.R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
Alaska: Alaska R. of Prof.Conduct, R.4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party or person the lawyer knows
to be represented by another lawyer in the matter, unless the lawyer has the consent of the
other lawyer or is authorized by law to do so.
Arizona: Ariz.R. of Prof.Conduct, ER 4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
Arkansas: Ark.R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
California: Cal.R. of Prof.Conduct, R. 2-100: (A) While representing a client, a member shall
not communicate directly or indirectly about the subject of the representation with a party the
member knows to be represented by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer.
(B) For purposes of this rule, a "party": includes: (1) An officer, director, or managing
agent of a corporation or association, and a partner or managing agent of a partnership; or (2)
An association member or an employee of an association, corporation, or partnership, if the
subject of the communication is any act or omission of such person in connection with the
matter which may be binding upon or imputed to the organization for purposes of civil or
criminal liability or whose statement may constitute an admission on the part of the
organization.
(C) This rule shall not prohibit: (1) Communications with a public officer, board,
committee, or body; (2) Communications initiated by a party seeking advice or representation
from an independent lawyer of the party's choice; or (3) Communications otherwise authorized
by law.
Colorado: Colo.R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
Connecticut: Conn.R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
Delaware: Del.R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.

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District of Columbia: D.C.R. of Prof.Conduct, R.4.2: (a) During the course of representing
a client, a lawyer shall not communicate or cause another to communicate about the subject
of the representation with a party known to be represented by another lawyer in the matter,
unless the lawyer has the consent of the lawyer representing the other party or is authorized
by law to do so.
(b) During the course of representing a client, a lawyer may communicate about the
subject of the representation with a nonparty employee of the opposing party without
obtaining the consent of that party's lawyer. However, prior to communicating with any such
nonparty employee, a lawyer must disclose to such employee both the lawyer's identity and
the fact that the lawyer represents a party with a claim against the employee's employer.
(c) For purposes of this Rule, the term `party' includes any person, including an
employee of a party organization, who has the authority to bind a party organization as to the
representation to which the communication relates.
(d) This Rule does not prohibit communications by a lawyer with government officials
who have the authority to redress the grievances of the lawyer's client, whether or not those
grievances or the lawyer's communications relate to matters that are the subject of the
representation, provided that in the event of such communications the disclosures specified in
(b) are made to the government official to whom the communication is made.
Florida: Fla.R. of Prof.Conduct, R. 4-4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a person the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so. Notwithstanding the foregoing, an attorney may,
without such prior consent, communicate with another's client in order to meet the
requirements of any statute or contract requiring notice or service of process directly on an
adverse party, in which event the communication shall be strictly restricted to that required
by statute or contract, and a copy shall be provided to the adverse party's attorney.
Georgia: Ga.State Bar R., R.4-102, R .4.2: (a) A lawyer who is representing a client in a
matter shall not communicate about the subject of the representation with a person the lawyer
knows to be represented by another lawyer in the matter, unless the lawyer has the consent of
the other lawyer or is authorized to do so by constitutional law or statute.
(b) Attorneys for the State and Federal Government shall be subject to this Rule in the
same manner as other attorneys in this State.
The maximum penalty for a violation of this Rule is disbarment.
Hawaii: Haw. R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a person the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
Idaho: Idaho R. of Prof. Conduct, R.4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
Illinois: Ill.R. of Prof.Conduct, R. 4.2: During the course of representing a client a lawyer
shall not communicate or cause another to communicate on the subject of the representation
with a party the lawyer knows to be represented by another lawyer in the matter, unless the
first lawyer has obtained the prior consent of the lawyer representing such other party or as
may otherwise be authorized by law.

CRS-31
Indiana: Ind.R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
Iowa: Iowa Code of Prof. Responsibility, DR 7-104(A)(1): (A) During the course of his
representation of a client a lawyer shall not: (1) Communicate or cause another to
communicate on the subject of the representation with a party known to be represented by a
lawyer in that matter except with the prior consent of the lawyer representing such other party
or as authorized by law.
Kansas: Kan.S.Ct.R., R. 226, Model R. of Prof.Conduct, R. 4.2: In representing a client, a
lawyer shall not communicate about the subject of the representation with a party the lawyer
knows to be represented by another lawyer in the matter, unless the lawyer has the consent of
the other lawyer or is authorized by law to do so.
Kentucky: Ky.S.Ct.R., R. of Prof. Conduct, R. 4.2: In representing a client, a lawyer shall
not communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
Louisiana: La.R. of Prof. Conduct, R. 4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so. A lawyer shall not effect the prohibited
communication through a third person, including the lawyer's client.
Maine: Me.Code of Prof. Responsibility, R 3.6(f): During the course of representation of a
client, a lawyer shall not communicate or cause another to communicate on the subject of the
representation with a party the lawyer knows to be represented by a lawyer in that matter
unless the lawyer has the prior consent of the lawyer representing such other party or is
authorized by law to do so.
Maryland: Md.Lawyers' R. of Prof. Conduct, R. 4.2: In representing a client, a lawyer shall
not communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
Massachusetts: Mass.R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a person the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
Michigan: Mich.R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
Minnesota: Minn.R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so. A party who is a lawyer may communicate directly

CRS-32
with another party unless expressly instructed to avoid communication by the lawyer for the
other party, or unless the other party manifests a desire to communicate only through counsel.
Mississippi: Miss.R. of Prof. Conduct, R.4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
Missouri: Mo.St.Ct.R., R.4-4.2: In representing a client, a lawyer shall not communicate
about the subject of the representation with a party the lawyer knows to be represented by
another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is
authorized by law to do so.
Montana: Mont.R.Prof.Conduct, R.4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
Nebraska: Neb.Code of Prof.Responsibility DR 7-104(A)(1): (A) During the course of his
or her representation of a client, a lawyer shall not: (1) Communicate or cause another to
communicate on the subject of the representation with a party he knows to be represented by
a lawyer in that matter unless he has the prior consent of the lawyer representing such other
party or is authorized by law to do so.
Nevada: Nev.S.Ct.R., R.182: In representing a client, a lawyer shall not communicate about
the subject of the representation with a party the lawyer knows to be represented by another
lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by
law to do so.
New Hampshire: N.H.R.Prof.Conduct, R.4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
New Jersey: N.J.Rules of Prof.Conduct, RPC 4.2 In representing a client, a lawyer shall not
communicate about the subject of the representation with a person the lawyer knows, or by
the exercise of reasonable diligence should know, to be represented by another lawyer in the
matter, including members of an organization's litigation control group as defined by RPC
1.13, unless the lawyer has the consent of the other lawyer or is authorized by law to do so,
or unless the sole purpose of the communication is to ascertain whether the person is in fact
represented. Reasonable diligence shall include, but not be limited to, a specific inquiry of the
person as to whether that person is represented by counsel. Nothing in this rule shall,
however, preclude a lawyer from counseling or representing a member or former member of
an organization's litigation control group who seeks independent legal advice.
New Mexico: N.Mex.R.Prof.Conduct, R. 16-402: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so. Except for persons having a managerial
responsibility on behalf of the organization, an attorney is not prohibited from communicating
directly with employees of a corporation, partnership or other entity about the subject matter
of the representation even though the corporation, partnership or other entity itself is
represented by counsel.

CRS-33
New York: N.Y. R. of Ct. §1200.35 [DR 7-104] : (A) During the course of his representation
of a client a lawyer shall not: (1) Communicate or cause another to communicate on the
subject of the representation with a party he knows to be represented by a lawyer in that
matter unless he has the prior consent of the lawyer representing such other party or is
authorized by law to do so.
North Carolina: N.C.R.Prof.Conduct R.4.2: During the representation of a client, a lawyer
shall not communicate about the subject of the representation with a party the lawyer knows
to be represented by another lawyer in the matter, unless the lawyer has the consent of the
other lawyer or is authorized by law to do so. It is not a violation of this Rule for a lawyer
to encourage his or her client to discuss the subject of the representation with the opposing
party in a good faith attempt to resolve the controversy.
North Dakota: N.D.R.Prof.Conduct R.4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
Ohio: Ohio Code of Prof.Responsibility DR 7-104(A)(1): (A) During the course of his
representation of a client a lawyer shall not: (1) Communicate or cause another to
communicate on the subject of the representation with a party he knows to be represented by
a lawyer in that matter unless he has the prior consent of the lawyer representing such other
party or is authorized by law to do so.
Oklahoma: Okla.R.Prof.Conduct, R.4.2: In representing a client, a lawyer shall not
communicate, or cause another to communicate about the subject of the representation with
a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer
has the consent of the other lawyer or is authorized by law to do so.
Oregon: Ore. Code of Prof.Responsibility DR 7-104(A)(1): (A) During the course of his or
her representation of a client, a lawyer shall not: (1) Communicate or cause another to
communicate on the subject of the representation, or on directly related subjects, with a person
he knows to be represented by a lawyer in that subject, or on directly related subjects, unless
(a) the lawyer has the prior consent of the lawyer representing such other party; the lawyer
is authorized by law to do so; or (c) a written agreement requires a written notice or demand
to be sent to such other person, in which case a copy of such notice or demand shall also be
sent to such other person's lawyer.
Pennsylvania: Pa.R.Prof.Conduct, R.4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
Rhode Island: R.I.R.Prof.Conduct, R.4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
South Carolina: S.C.App.Ct.R., R.407: 4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.

CRS-34
South Dakota: S.D.R.Prof.Conduct, R.4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
Tennessee: Tenn.S.Ct.R., R.8: DR 7-104(A)(1): During the course of a lawyer's
representation of a client a lawyer shall not: (1) Communicate or cause another to
communicate on the subject of the representation with a party the lawyer knows to be
represented by a lawyer in that matter unless the lawyer has the prior consent of the lawyer
representing such other party or is authorized by law to do so.
Texas: Tex.State Bar R., Art.10, §9: Tex.Code of Prof.Conduct, R.4.02: (a) In representing
a client, a lawyer shall not communicate or cause or encourage another to communicate about
the subject of the representation with a person, organization or entity of government the
lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer
has the consent of the other lawyer or is authorized by law to do so.
(b) In representing a client, a lawyer shall not communicate or cause another to
communicate about the subject of the representation with a person or organization the lawyer
knows to be employed or retained for the purpose of conferring with or advising another
lawyer about the subject of the representation, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
(c) For the purpose of this rule, "organization or entity of government" includes: (1)
those persons presently having a managerial responsibility with an organization or entity of
government that relates to the subject of the representation, or (2) those persons presently
employed by such organization or entity and whose act or omission in connection with the
subject of representation may make the organization or entity of government vicariously liable
for such act or omission.
(d) When a person, organization, or entity of government that is represented by a lawyer
in a matter seeks advice regarding that matter from another lawyer, the second lawyer is not
prohibited by paragraph (a) from giving such advice without notifying or seeking consent of
the first lawyer.
Utah: Utah R.Prof.Conduct, R.4.2: (a) General Rule. A lawyer who is representing a client,
in a matter shall not communicate about the subject of the representation with a person the
lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer or is authorized by: (1) constitutional law or statute; (2) decision
or a rule of a court of competent jurisdiction; (3) a prior written authorization by a court of
competent jurisdiction obtained by the lawyer good faith; or (4) paragraph (b) of this rule.
(b) Rules Relating to Government Lawyers Engaged in Civil or Criminal Law
Enforcement. A government lawyer engaged in a criminal or civil law enforcement matter,
or a person acting under the lawyer’s direction in the matter, may communciate with a persion
known to be represented by a lawyer if:
(1) the communciation is in the course of, and limited to, an investigation of a different
matter unrelated to the representation or any ongoing, unlawful conduct; or
(2) the communication is made to protect against imminent risk of death or serious
bodily harm or substantial property damage that the government lawyer reasonably relieves
may occur, and the communciation is limited to those matters necessary to protect against the
imminent risk; or
(3) the communciation is made at the time of the arrest of the represented person and
after he or she is advised of his or her rights to remain silent and to counsel and voluntarily
and knowingly waives these rights; or
(4) the communication is initiated by the represented person, directly or through an
intermediary, if prior to the communciation the represented person has given a written or

CRS-35
recorded voluntary and informed wiaver of counsel, including the right to have substitute
counsel, for that communciation.
(c) Orgniazaitons as Represented Persons. (1) When the represented “person” is an
organization, an individual is “represented” by counsel for the organization if the individual
is not separately represented with respect to the subject matter of the communciation, and
(A) with respect to a communcation by a government lawyer in a civil or criminal law
enforcement matter, is known by the government lawyer to be a current member of the control
group of the represented organization; or
(B) with respect to a communication by a lawyer

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3ARL30060. Public record. Not legal advice.